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  • Despite Fifth Circuit Decision, CMS Vaccine Mandate Remains Stayed in 24 States

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On December 15, the Fifth Circuit Court of Appeals granted the Biden Administration a limited reprieve of the previously issued near-nationwide injunction by a Louisiana federal court.  As we previously reported, the two decisions issued by the Federal courts in Louisiana and Missouri had effectively combined to bar enforcement on a nationwide basis of the Centers for Medicare and Medicaid Services (“CMS”) vaccine mandate (“Mandate”).

Even after the Fifth Circuit’s decision, however, the Biden Administration is still barred from enforcing the Mandate in almost half the states. Under the Fifth Circuit’s order, the Biden Administration is barred from enforcing the Mandate in the following 14 states:

Alaska Mississippi
Arizona Montana
Georgia Ohio
Idaho Oklahoma
Indiana South Carolina
Kentucky Utah
Louisiana West Virginia

The Fifth Circuit’s decision does not impact the injunction issued by the federal court in Missouri, which was upheld by the Eighth Circuit. Therefore, the Biden Administration is also barred from enforcing the Mandate in the following 10 states:

Alaska Nebraska
Arkansas New Hampshire
Iowa North Dakota
Kansas South Dakota
Missouri Wyoming

On December 16, the Biden Administration challenged these injunctions, asking the U.S. Supreme Court to permit it to impose the CMS Mandate nationwide.

CMS previously notified state agencies that, in light of the nationwide injunction that had been issued by the Louisiana and Missouri federal courts, it was suspending activities related to the implementation and enforcement of the Mandate “pending future developments in the litigation.”  At t the time this advisory was published, CMS had not issued any public statements regarding the status of its suspended enforcement of the Mandate in consideration of the Fifth Circuit decision.

Frost Brown Todd will be watching closely for the U.S. Supreme Court to issue its decision.   We will keep you apprised of all relevant future developments.  For information about these decisions, please contact Catherine BurgettAnne DupreyKyle JohnsonJeff Shoskin, or any attorney in Frost Brown Todd’s Labor and Employment Practice Group.