“I’m Back” … CMS Rule is Back in Tennessee (December 17, 2021)
In the most recent installment of court decisions regarding the CMS (Centers for Medicare & Medicaid Services) vaccine mandates for certain health care providers that participate in the Medicare/Medicaid programs, the Fifth Circuit Court of Appeals issued an Opinion on December 15, 2021, modifying a lower court’s previously-issued “nationwide” injunction against the CMS vaccination rule. The Court of Appeals upheld the injunction only as it applies to the fourteen states participating in that lawsuit, but “stayed” the injunction (in effect, lifting it) as to the remaining states which are not part of that lawsuit. Louisiana v. Becerra, 2021 WL 5913302 (Dec. 15, 2021).
This means the following:
- For Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio, the CMS vaccine mandate is still enjoined by virtue of a Louisiana federal district court decision;
- The CMS mandate is also still enjoined in the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire by virtue of a Missouri federal district court decision; and
- For all other states (including Tennessee), this means the CMS vaccination rule is not stayed, is not subject to an injunction as of the time of this Alert, and may be enforced by CMS. Tennessee and some other states have passed state laws prohibiting employers from requiring employees to prove their vaccination status, but exemptions from those state laws may be available if requested.
The CMS’ final interim rule requires that employees (as well as other individuals who provide care, treatment, or other services) in most health care settings that participate in Medicare/Medicaid be “fully vaccinated” against COVID by January 4, 2022. At this time, it is uncertain whether CMS will hold to the January 4th compliance deadline. Employers covered by the CMS mandate should consult with counsel for guidance regarding compliance and expected further court decisions.