As Hall Render previously reported last week, 10 states challenged the CMS and HHS Interim Final Rule (“IFR”) requiring vaccination of staff of certain Medicare and Medicaid providers and suppliers. Yesterday, 12 more states filed a similar suit challenging the IFR in the Western District Court of Louisiana—a court in the Fifth Circuit that just last week maintained a stay it issued in a case challenging OSHA’s vaccine ETS. These suits are the latest legal challenges against the federal government’s attempts to mandate vaccine initiatives nationwide.

States Challenge CMS’s Authority to Mandate Vaccinations

These states’ suits raise multiple counts alleging that CMS lacks statutory authority to issue its IFR. The suits include procedural and constitutional arguments against the IFR and CMS’s authority to issue the same. Besides broad complaints in both district courts, the states moved for preliminary injunctions—asking the courts to stay CMS’s implementation of the IFR. Doing so triggers an expedited process through which the courts will allow both the challengers and the government defendants to file written briefs and conduct a hearing on whether such an injunction is permissible. Any decision about injunctive relief from either district court is likely to be quickly appealed to the federal Court of Appeals with jurisdiction over that court. Notably, the plaintiffs yesterday filed suit in the Fifth Circuit, which recently provided several states an early win by extending a temporary stay barring OSHA’s implementation or enforcement of its vaccine ETS.

Government Moves OSHA Vaccine ETS Challenges into JPML Process

As we discussed last week, the challenges to OSHA’s vaccine ETS follow a different path—one begun directly in federal Courts of Appeals. With suits filed in 12 federal circuits, the government initiated a process through which the Judicial Panel on Multidistrict Litigation (“JPML”) randomly selected the Sixth Circuit as the Circuit Court to consolidate all appeals before a single panel. The assigned panel will then determine both the fate of the current stay imposed by the Fifth Circuit and ultimately the merits of the challenges against OSHA’s vaccine ETS. With implementation deadlines of December 6 and January 4, we should expect quick-moving developments in this litigation.

Practical Takeaways

As with our previous articles related to these challenges, this space is fast-moving and remains unpredictable. It is critical that private employers and health care providers or entities consult their counsel regarding both the applicability of any specific vaccination requirements and the effect of any litigation on the same.