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January 13, 2022 at 4:30 p.m. ET

U.S. Supreme Court allows CMS vaccine mandate to go into effect, but blocks OSHA vaccine-or-test mandate

Consistent with predictions following the oral argument (see below), the U.S. Supreme Court in a 5-4 opinion allowed the Centers for Medicare & Medicaid Services vaccine mandate for health care workers to go into effect, but blocked the Occupational Safety and Health Administration’s vaccine-or-test mandate by a 6-3 vote. The court’s decisions mean that health care workers at facilities and at suppliers covered by the CMS regulation must be fully vaccinated or receive an approved medical or religious exemption by Feb. 28, 2022.

Court relies on congressional authority to protect patient health and safety to uphold the CMS mandate

In its opinion allowing the CMS vaccine mandate to go into effect, the court noted that CMS has broad powers to condition facilities’ participation in the Medicare and Medicaid programs on “requirements as [CMS] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The court held that CMS reasonably concluded that a COVID-19 vaccine mandate was necessary to protect patient health and safety because “COVID-19 is a highly contagious, dangerous — and especially for Medicare and Medicaid patients — deadly disease.”

The court rejected the challengers’ arguments that the statute “authorizes [CMS] to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.” The court cited with approval ��ѳ�’ “longstanding practice” of using its statutory authority to regulate “the safe and effective provision of healthcare, not simply sound accounting.” For example, CMS regulations govern how long after admission a patient must be examined, and by whom; the procurement and transplant of solid organs; tasks that can be delegated by a physician to an advanced-practice provider; and the control of infectious diseases within a facility. Not only that, but CMS routinely regulates the qualifications and duties of health care professionals, justifying these regulations by its power to protect patient safety. Requiring a COVID-19 vaccine for health care workers, the court held, is ultimately no different.

The court recognized that the CMS vaccine mandate “goes further than what [CMS] has done in the past to implement infection control” but also that CMS “has never had to address an infection problem of this scale and scope before.” And the court noted that vaccine requirements are common in the health care setting and that “healthcare workers and public-health organizations overwhelmingly support” the CMS mandate, which “suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized [CMS] to impose.”

Finally, the court rejected the challengers’ claims that the CMS mandate was unlawfully issued without public participation and did not adequately consider alternatives or the available evidence. As for public participation, the court held that the impending winter flu season was sufficient good cause to dispense with advance notice and comment. And as for alternatives and evidence, the court held that ��ѳ�’ decisions were “within a zone of reasonableness” and should not be second-guessed by the courts. The court therefore stayed the preliminary injunctions imposed by the Missouri and Louisiana district courts blocking the CMS mandate.

The court’s decision confirms what we saw coming out of oral argument. First, the median justices made the difference. The court’s unsigned majority opinion was joined by Justice Breyer, Justice Sotomayor and Justice Kagan — and two of the three median justices Chief Justice Roberts and Justice Kavanaugh. Second, the court saw the CMS regulation as tailored to the threat COVID poses in the health care setting, whereas the OSHA rule was too indiscriminate in regulating all workplaces with 100+ employees. Third, the court understood that the long history of CMS infection-control regulations made the vaccine mandate an incremental step, not a sweeping new assertion of authority. And finally, the court cited the health care community’s strong support for vaccinating health care workers, making it clear CMS was properly exercising its powers to protect patients.

Court relies on major-questions doctrine to block OSHA vaccine-or-test mandate

As we also predicted from oral argument, however, the court saw the OSHA mandate as going too far. The court’s unsigned majority opinion was joined by all three median justices as well as Justices Thomas, Alito, and Gorsuch.

Invoking the major-questions doctrine, the court stated that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And it held that OSHA’s vaccine-or-test mandate was a major question because it is “a significant encroachment into the lives—and the health—of a vast number of employees.” The Court further emphasized that this kind of OSHA mandate was unprecedented: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a telling indication that the mandate extends beyond the agency’s legitimate reach.”

The court then considered whether the Occupational Safety and Health Act “plainly authorizes” OSHA’s vaccine-or-test mandate, and held that it does not. The court viewed the Act as limited to “workplace safety standards, not broad public health measures.” To the court, although COVID-19 as a risk in many workplaces, it is not an “occupational hazard in most.” Allowing OSHA to regulate that “universal” risk of COVID, the court believed, “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The court did emphasize, however, that a more-limited vaccine-or-test mandate might pass muster. It stated that where COVID-19 “poses a special danger because of the particular features of an employee’s job or workplace, target regulations are plainly permissible.” OSHA, for instance, can “regulate risks associated with working in particularly crowded or cramped environments.” What OSHA cannot regulate, the court held, is “the everyday risk of contracting COVID-19 that all face.” The court therefore reimposed a nationwide stay blocking the OSHA vaccine-or-test mandate.

What’s next?

Technically, all the court did today was decide whether the mandates will go into effect while the courts of appeals consider the challenges to them. But at this point, the writing is on the wall: The court has five votes to uphold a CMS vaccine mandate and six votes to vacate an economy-wide OSHA vaccine-or-test mandate. So while the cases return to the courts of appeals for further proceedings, it is very unlikely that the courts of appeals will reach a conclusion different than the Supreme Court’s on the stay applications.

In fact, shortly after the Court released its decision, the White House issued a saying:

As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.

Given the Supreme Court’s rulings today and that statement, expect CMS to finalize the vaccine mandate in essentially the same form as the interim final rule. But any attempt to finalize an OSHA vaccine-or-test mandate similar to the emergency temporary standard enjoined today seems likely to be blocked, as the White House seems to have recognized.

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January 7, 2022 at 4:30 p.m. ET

Key Insights from Jan. 7 Oral Arguments before the U.S. Supreme Court on CMS and OSHA Vaccine Mandates

The United States Supreme Court today heard oral arguments on whether to allow the Centers for Medicare & Medicaid Services’ vaccine mandate and Occupational Safety and Health Administration’s vaccine-or-test mandate to go into effect pending review in the courts of appeals. The oral arguments were an almost-four-hour marathon and predicting outcomes based on the questioned asked is always risky.

But I will predict anyway. The CMS vaccine mandate is likely to go into effect. The OSHA mandate in its current form, meanwhile, appeared to face more skepticism from a majority of the Justices. But the Court signaled its willingness to uphold a vaccine-or-test mandate tailored to certain high-risk workplaces — including health care facilities.

Just as importantly for health care facilities, the federal government emphasized at argument that CMS will exercise its enforcement discretion so that facilities working in good faith to vaccinate their staffs do not have to fear significant enforcement action.

What Will the Median Justices Do?

Our preview post discussed looking out for whether Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett — the median Justices or what we used to call the “swing Justices” — would treat the CMS and OSHA vaccine mandates differently, and the arguments today confirmed that they likely will. In their questions, the three Justices drew a distinction between the CMS mandate, which merely states that the federal government will only spend its health care dollars at facilities with vaccinated staff, and the OSHA mandate, which the Justices viewed as an expansive direct regulation of American workplaces normally left to states or Congress.

Chief Justice Roberts, for instance, repeatedly asked the CMS mandate challengers whether the Spending Clause context makes it different than the OSHA mandate. Justice Kavanaugh likewise asked the CMS mandate challengers how a COVID-vaccine mandate is any different from ��ѳ�’ unquestioned authority to make health care workers wear gloves when working with patients.

The median Justices were also telling in the questions they didn’t ask. Although they asked questions of both sides, the median Justices seemed generally satisfied by the answers they received from Deputy Solicitor General Brian Fletcher defending the CMS mandate. And when the CMS vaccine mandate challengers came under fire from the more-liberal Justices, none of the median Justices came to bail the challengers out.

The general tenor of the Justices’ questions was that health care facilities comply with innumerable CMS regulations as a condition of participation in federal health care programs, and this one is uniquely tailored to protect the most-vulnerable patients. As Justice Kagan put it, “all [CMS] is doing here is to say the one thing you can’t do is kill your patients.” And Justice Kavanaugh noted that hospitals and health care facilities were not challenging the CMS mandate, suggesting they had no problem with it.

Fletcher ended the CMS-mandate argument on a note important for hospitals. He stressed that CMS always enforces its mandates flexibly and that CMS has issued guidance that hospitals who have vaccine policies and are working in good faith to get their staff vaccinated will not face enforcement, even if they don’t technically meet the mandate’s standards. That reiteration of flexibility comes as welcome news to hospitals working to vaccinate their staffs in the face of pockets of vaccine hesitancy.

How Were the CMS and OSHA Arguments Different?

More fundamentally, the tenor of the CMS and OSHA mandate arguments were different. In the OSHA-mandate arguments, the median Justices were concerned that OSHA’s vaccine mandate was not tailored to workplace hazards and instead intruded on Congress’ and states’ role to protect the general welfare. Chief Justice Roberts expressed his view that the federal government’s various mandates were trying to “cover the waterfront” and vaccinate as many Americans as possible rather than address particular threats within each agency’s expertise. Justice Kavanaugh likewise stated that he thought an express directive from Congress was necessary before OSHA imposed a mandate. And Justice Barrett signaled that she thought that mandate was too broad in its current form.

Crucially, however, the median Justices seemed to accept that a more-tailored OSHA rule would be permissible. Chief Justice Roberts early on suggested that workers at a meatpacking plant sitting side by side on the production line might need protection from an OSHA standard whereas office workers might not. Other Justices picked up on that hypothetical, and even the attorney representing the private businesses challenging the mandate conceded that a vaccinate-or-test mandate in the health care context might be justified.

Another way in which the Justices differed is in how they viewed the federal government’s powers in the face of an unprecedented pandemic. Justices Breyer, Sotomayor, and Kagan repeatedly stressed the unique and deadly threat that COVID-19 poses, suggesting that whatever legal limits there are on OSHA and ��ѳ�’ emergency authorities, the mandates fell well within them. The more-conservative Justices, however, argued through their questions that it is important to maintain what they saw as the appropriate balance between the executive and legislative branches, even in a pandemic. Framing the question as “who decides?”, these Justices argued that Congress and the states — not administrative agencies — should be the ones to decide whether to impose vaccine mandates.

What’s Next?

The Court has only once heard oral argument on a stay application in the modern era so there is no way to know, exactly, when the Court will act. The challengers asked the Court to act quickly before the initial compliance dates come into effect, but the Court will also want to write thorough opinions explaining its reasoning. I am expecting a decision before the end of January and before vaccine sequences have to be completed, but decisions may come out sooner, depending on how quickly the Court writes.

After the Supreme Court rules, the cases will proceed on the merits in the lower courts of appeals. But the Supreme Court’s decision will likely control the outcomes in those courts because the Supreme Court will express its view on whether the mandates are likely lawful. In addition, because the inherently time-limited mandates will likely expire before the courts of appeals can review them on the merits and the Supreme Court can decide whether to grant plenary review, the Supreme Court’s decisions will likely dictate whether the CMS and OSHA mandates ever go into effect in their current forms.

Stay tuned to the blog for more on the cases as they develop.

January 7, 2022 at 10:00 a.m. ET

Key Insights from the Oral Arguments Before the Supreme Court in Vaccine Mandate Cases

The U.S. Supreme Court January 7, 2022, held oral arguments on whether to allow the Centers for Medicare & Medicaid Services’ and Occupational Safety and Health Administration’s vaccine mandates to go into effect while appeals are heard in the courts of appeals. Sean Marotta, a partner at Hogan Lovells and AHA outside counsel, provided real-time analysis of the oral arguments and a recap of the key takeaways.

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January 4, 2022 at 3:30 p.m. ET

What to Look for in Friday’s Vaccine Mandate Oral Arguments

On Friday, Jan. 7, the U.S. Supreme Court will hold oral arguments on whether to allow the Centers for Medicare & Medicaid Services’ and Occupational Safety and Health Administration’s vaccine mandates to go into effect while appeals are heard in the courts of appeals. It is nearly unprecedented for the Court to hear argument at the stay — rather than the merits — stage, as they are doing here, and typically there would have been more briefing on issues of such significance. And because these particular mandates are time-limited — by statute, the OSHA mandate can last only six months and the CMS mandate will likely last for a similar period — the Supreme Court’s stay decision may effectively decide whether these mandates go into effect at all, depending on how quickly the Court issues its decisions.

In this post, we’ll break down the legal issues confronting the Court and what to look for when the Justices convene (as of now, in person) on Friday at 10 a.m. The Court will hear arguments on the two mandates separately, but, as of right now, we do not know in which order.

You can listen to the argument yourself on the Supreme Court’s homepage: .

The CMS Vaccine Mandate

��ѳ�’ vaccine mandate requires all staff at health care facilities subject to the regulation, except for those with approved medical or religious exemptions, to be vaccinated. The federal government contends the mandate is a proper exercise of ��ѳ�’ statutory power to regulate Medicare and Medicaid-participating providers. The federal government reasons that CMS has a broad mandate to protect beneficiaries’ health by conditioning payment to providers on providers meeting certain requirements and vaccinated staff can be one of them.

The challengers, by contrast, argue that CMS cannot rely on its general power to regulate the Medicare and Medicaid programs to impose a sweeping vaccine mandate. The challengers invoke what is called the “major questions” doctrine, under which Congress must clearly and unambiguously authorize agencies to implement programs that have “vast economic and political significance.” A vaccine mandate for a large majority of health care workers, the challengers contend, is of such economic and political significance that it must be expressly authorized by Congress.

The challengers also argue that CMS acted contrary to law by issuing the vaccine mandate without notice and an opportunity for comment. The challengers contend that vaccines have been available for health care workers for months and that there was no immediate emergency — apart from the pandemic generally — to justify issuing the mandate without a comment period. The federal government counters that the winter flu season and increase in variants warranted immediate issuance of the mandate. It also argues that the challengers had not shown any harm from the lack of comment because they have not identified any evidence they would provide that CMS did not already consider.

Finally, the challengers argue that CMS did not consider various evidence or alternatives before issuing the mandate. They argue that CMS did not adequately consider that the mandate might cause staffing shortages. They also argue that CMS did not adequately consider daily or weekly testing as an alternative or limiting the vaccination requirement to health care workers who have not been previously infected. The federal government responds that CMS considered the effect on staffing and rationally determined that few health care workers will actually quit when put to the choice of vaccination or their jobs. The federal government also argues that CMS considered and rejected each of the challengers’ proposed alternatives and that the Court should refer to ��ѳ�’ expertise.

The OSHA Vaccine Mandate

The arguments against the OSHA vaccine mandate are similar, but slightly different.

The challengers, again invoking the major-questions doctrine, argue that nothing in the Occupational Safety and Health Act expressly gives OSHA the power to require vaccination or weekly testing of many American workers. The challengers argue that power should not be read into OSHA’s broad power to regulate workplace hazards because of the economic and political consequences of requiring broad-scale vaccination or weekly testing and because the OSH Act was meant to regulate workplace-specific hazards, not general environmental hazards. The federal government, by contrast, points to the OSH Act’s requirement that the agency regulate “agents” and that are “physically harmful” and argues that SARS-CoV-2 fits that definition. The federal government also contends that the OSH Act’s direction that OSHA “assure so far as possible every working man in the workman in the Nation safe and healthful working conditions” overcomes the challengers’ major-questions-doctrine arguments. Congress, the federal government argues, understood that OSHA would have expansive powers over American workplaces and authorized the agency’s intrusion.

The challengers also attack OSHA issuing its mandate through its “emergency temporary standard” authority without notice and comment. They argue that COVID has been around for two years now and that vaccines have been widely available for over six months and that there is no emergency warranting the issuance of an emergency temporary standard without public input. The federal government responds that an emergency standard is appropriate any time there is a “new” hazard and that SARS-CoV-2’s recent emergence meets that standard, particularly given the prevalence of newly harmful variants.

What Should We Look For On Friday?

Focus on the Median Justices. The Justices at oral argument are not just asking the advocates questions; they are also testing out theories of the case and signaling to their colleagues. Conventional wisdom says that Justices Thomas, Alito and Gorsuch are sure votes against the mandates and that Justices Breyer, Sotomayor and Kagan are sure votes in favor of the mandates. Their questions therefore won’t mean much except to the extent they influence their remaining three colleagues.

By contrast, questions from the three justices whose votes are thought to be in play — Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett — are going to be crucial. These median Justices will use their questions to voice their concerns with both sides’ positions and perhaps to propose middle-ground or compromise positions. We will be listening especially closely when these three median Justices speak, and what the other six Justices say and ask with those Justices in mind.

How Concerned Are the Median Justices About Administrative Overreach? In past emergency applications, the Chief Justice, Justice Kavanaugh, and Justice Barrett have declined to halt state-level vaccine mandates. But these cases are different because they come from federal administrative agencies. Conservative justices in the past have been concerned that agencies have been overreaching and thus usurping Congress’s role. If those concerns come up Friday from the median justices, that may be bad news for the vaccine mandates’ proponents.

How Concerned Are the Median Justices About the Lack of Notice and Comment? In administrative law, issuing rules without notice and comment is the exception, not the rule. One option for the Court could be halting the mandates for lack of public input. That would prevent enforcement but defer the bigger statutory questions until CMS and OSHA issue final vaccine-mandate rules with public participation, which will start the cycle of litigation all over again.

Will the Median Justices View the Two Mandates Differently? The arguments for and against the two mandates overlap thematically, but they were issued under two different statutes and apply to two different groups of workers. The CMS mandate is a condition on federal spending, whereas the OSHA mandate is a direct regulation of workplaces. The CMS mandate applies narrowly to health care workers while the OSHA mandate applies to almost all employees employed by employers with over 100 workers. Keep an eye on whether the median justices treat the CMS and OSHA mandates differently and are perhaps more-willing to uphold the CMS mandate than the OSHA mandate.

Want More Analysis?

On Friday, I will be live-tweeting the oral arguments at @smmarotta. And following the arguments, I will have summaries here and will be doing a podcast with AHA Deputy General Counsel Chad Golder breaking down the key takeaways for hospitals.

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December 28, 2021 at 9:00 p.m. ET

In a reversal of its previous position, CMS on Dec. 28 that it would begin enforcing its vaccine mandate as to facilities in the states where the mandate is not currently judicially enjoined. Those states are: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin. CMS also will enforce its vaccine mandate in the District of Columbia and the territories.
 
CMS has, however, modified the compliance dates for the mandate. Facilities in the 25 states where the mandate is not enjoined must now comply with phase 1 of the CMS mandate — staff at all health care facilities included within the regulation must have received, at a minimum, the first dose of a primary series or a single dose COVID-19 vaccine prior to staff providing any care, treatment or other services for the facility or its patients — by Jan. 27, 2022. Facilities in the 25 states where the mandate is not enjoined must also comply with phase 2 of the mandate — staff at all health care provider and supplier types included in the regulation must complete the primary vaccination series or have obtained an exemption — by Feb. 28, 2022.
 

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December 22, 2021 at 7:30 p.m. ET

U.S. Supreme Court to Hear Oral Arguments Jan. 7 in CMS and OSHA mandate cases

In an unprecedented move, the Supreme Court has set for oral argument on Jan. 7 both (1) the emergency applications to stay the Missouri and Louisiana district court injunctions judicially enjoining the CMS mandate in 25 states and (2) the emergency applications to re-stay the OSHA mandate.

Traditionally, the Supreme Court acts on emergency applications such as these without oral argument. And occasionally, the Supreme Court then converts an emergency application to a full hearing on the merits. But it is unheard of for the full court to hear oral argument directly on an emergency application like this. The court’s order shows the legal and practical importance of the federal government’s vaccine mandates and whether they should be stayed pending appellate review.
 

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December 20, 2021 at 2:00 p.m. ET

Over the weekend, and as of this writing, eight groups of challengers to the OSHA vaccine mandate filed emergency applications with the U.S. Supreme Court asking the high court to once again stay the mandate following the Sixth Circuit’s Dec. 17 decision to lift the Fifth Circuit’s previously entered stay.
 
Today, the Supreme Court asked the federal government for a response to the challengers’ applications by Dec. 30 by 4 p.m. If that sounds familiar, it is because Dec. 30 at 4 p.m. is also the date and time the challengers to the CMS vaccine mandate will be filing their responses to the federal government’s Supreme Court application asking the court to stay the Missouri and Louisiana preliminary injunctions enjoining the CMS mandate. Both sets of applications will be briefed at the same time and the Supreme Court will have the opportunity to rule on the fate of both the CMS and OSHA vaccine mandates at the same time, if it so chooses.

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December 18, 2021 at 2:30 p.m. ET

What do all the decisions from the courts of appeals this week mean for enforcement of the CMS and OSHA vaccine mandates? This post takes a look at that question.

The CMS vaccine mandate is currently enjoined by court order for facilities in 25 states and not enjoined for facilities in the other 25 states. That means that for the 25 states in which the CMS mandate is not judicially enjoined, CMS could enforce the mandate.

��ѳ�’ , however, states that CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.” AHA has confirmed with CMS that this statement applies nationwide and remains accurate even after the Fifth Circuit’s order staying the nationwide effect of the Louisiana district court’s preliminary injunction. In other words, CMS is not currently enforcing its vaccine mandate in all states, including those where the mandate is not presently judicially stayed. But ��ѳ�’ position may change, particularly following the Supreme Court’s action on the federal government’s application to stay the Louisiana and Missouri district court preliminary injunctions, and we will keep you updated if it does.

The situation is different for the OSHA vaccine mandate. OSHA has that it is “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA states that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’s] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA has also promised to “work closely with the regulated community to provide compliance assistance.” Like the CMS vaccine mandate, however, OSHA’s position on compliance may change following the Supreme Court’s ruling on the challengers’ applications to re-stay the mandate. 
 

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December 17, 2021 at 9:30 p.m. ET

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has dissolved the Fifth Circuit’s nationwide stay of the OSHA vaccine mandate. In a 38-page for the panel majority, Judge Jane Stranch stated that OSHA likely acted within its statutory authority in issuing the mandate; that the OSHA mandate likely was not barred by the major-questions doctrine; that OSHA likely had an adequate basis for implementing the mandate; and that the OSHA mandate is likely constitutional. Judge Stranch further concluded that the challengers had not shown irreparable harm from the OSHA mandate because the mandate allows employers to implement it in a variety of ways.

Concurring, Judge Julia Gibbons concluded that “[r]easonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities.” Judge Gibbons observed that the court’s “[o]nly responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution” and concluded that OSHA had likely had done so.

Judge Joan Larsen dissented. She argued that the OSHA mandate exceeded OSHA’s statutory authority and that it failed under the major-questions doctrine. Judge Larsen also argued that the challengers had shown irreparable harm in two ways. First, some individuals refusing to be vaccinated may be fired if their employers opt to adopt a vaccine mandate with no testing option.  Second, businesses may face unrecoverable compliance costs and lose employees amidst a labor shortage. Judge Larsen therefore would have left the Fifth Circuit’s stay in place.

Like the CMS vaccine mandate, the OSHA mandate is now ripe for a Supreme Court ruling about whether to stay the mandate pending the Sixth Circuit’s review. As of this writing, just over two hours after the Sixth Circuit’s ruling, three groups of OSHA mandate challengers have already filed emergent applications with the Supreme Court to stay the OSHA mandate.

I would not be surprised if the court directs a response from the federal government on Dec. 30, the same day as responses are due to the federal government’s application to stay the preliminary injunctions enjoining the CMS vaccine mandate in 25 states. We will likely not get a final answer from the Supreme Court before the end of 2021, but the beginning of 2022 will be big for the fate of the two vaccine mandates.

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December 17, 2021 at 5 p.m. ET

The U.S. Supreme Court has ordered the challengers from the Missouri and Louisiana CMS vaccine-mandate cases to respond to the federal government’s application to stay those district courts’ preliminary injunctions by Dec. 30 at 4 p.m.  The 13-day timeline for the challengers’ response is slower than observers expected – including me – and suggests that the court does not see a rush to act on the application over the holidays. 

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December 17, 2021 at 10:00 a.m. ET

Last evening, the federal government asked the U.S. Supreme Court to stay the Missouri and Louisiana district court preliminary injunctions that have put the CMS vaccine mandate on hold in 24 states. The federal government’s application argues that the Missouri and Louisiana district courts misconstrued the Medicare and Medicaid statutes, that issuing the mandate without notice and comment was necessary given the ongoing pandemic, and that the agency considered all relevant information in reaching its decision. The federal government also contends that it is being irreparably injured by the Missouri and Louisiana preliminary injunctions and that the public interest favors allowing the CMS vaccine mandate to go into effect while the Eighth and Fifth Circuits consider the federal government’s appeals.

This is the end-game that we have been waiting for. We have known that the Supreme Court would have the last word on whether the vaccine mandates go into effect, and the government’s application gives it the chance to do so for the CMS mandate. The question now is how quickly the Supreme Court will act. The court will soon set a deadline for the challengers to respond to the federal government’s application and for the federal government to file any reply, and could rule as soon as a few days after briefing is complete. If the court moves fast enough, we could have a ruling on the CMS mandate’s fate pending appeal before the end of the year.

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December 16, 2021 at 10:00 a.m. ET

Two additional updates on the vaccine-mandate litigation following the big news out of the Fifth and Sixth Circuits.

First, as expected, the Texas district court un-paused Texas’s challenge to the CMS vaccine mandate and entered a preliminary injunction enjoining the CMS mandate for facilities in Texas. The Texas district court preliminary injunction means that the CMS vaccine mandate is paused in 25 states and in effect in another 25 states.

Second, Florida sought “rehearing en banc” of the U.S. Court of Appeals for the Eleventh Circuit’s decision refusing to enjoin the CMS vaccine mandate pending appeal. The motion asks for the full court to overrule the three-judge panel’s order denying Florida an injunction pending appeal, and similar motions are rarely granted. But the Eleventh Circuit as a whole is more conservative than the three-judge panel that denied Florida’s request for an injunction pending appeal, and Florida apparently hopes that the full court will overturn the three-judge panel. But Florida’s motion for rehearing en banc will delay it seeking relief from the U.S. Supreme Court, likely putting it after applications from the federal government seeking to fully stay the Missouri and Louisiana district court’s preliminary injunctions.

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December 15, 2021 at 3:51 p.m. ET

We have two major orders on the CMS and OSHA vaccine mandates coming down minutes apart from each other.

First, the CMS mandate. The upheld the Louisiana district court’s preliminary injunction as applied to facilities in the 14 states that are plaintiffs in this case. The court stated that the federal government had not shown a “strong likelihood of success” that it would prevail in overturning the district court’s ruling on what is called the “major-questions doctrine,” where an agency must show particularly clear congressional authority to assert its authority in novel ways, such as requiring health care worker vaccination. The court admitted there were distinctions between the CMS vaccine mandate and the OSHA vaccine mandate the court had previously stayed under the major-questions doctrine. But the panel held that the distinctions were not so obvious that the federal government had shown the necessary likelihood of success on appeal to stay the Louisiana district court’s preliminary injunction.

The court did, however, pare back the scope of the almost-nationwide injunction. Noting that “[o]ther courts are considering these same issues,” the Fifth Circuit concluded that “[t]he vaccine rule is an issue of great significance currently being litigated throughout the country” and that “[it]s ultimate resolution will benefit from ‘airing of competing views’” in other courts. The court therefore upheld the injunction only as applied to facilities in the 14 states that brought suit: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio. These 14 states are in addition to the 10 subject to the Missouri district court preliminary injunction upheld by the Eighth Circuit: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. And we can expect the Texas district court to shortly enter a preliminary injunction as applied to facilities in Texas following this Fifth Circuit ruling. That will leave a split of 25 states where the CMS vaccine rule is in effect and 25 states where it is not.

Then, there’s the OSHA vaccine mandate. The split evenly, 8-8, in declining to hear the case “initially en banc,” meaning by the entire court as opposed to a three-judge panel. Five judges joined an opinion by Judge Karen Nelson Moore stating that initial hearing en banc was an “inefficient process” and ill-suited to the complex case before the court. (Three judges voted against initial hearing en banc but did not join Judge Moore’s opinion.) Eight judges joined an opinion by Chief Judge Jeffrey Sutton arguing that the OSHA vaccine mandate is unlawful. The court technically has not yet ruled on the federal government’s motion to lift the Fifth Circuit’s stay. But Judge Sutton’s concluding line, stating that “[t]he Court should grant the petition for initial hearing en banc and leave the Fifth Circuit’s stay of the emergency rule in place,” strongly suggests that the three-judge panel will lift the Fifth Circuit stay and allow the OSHA vaccine mandate to go into effect.

So what is next? On the CMS mandate, the federal government will likely ask the U.S. Supreme Court to stay the narrowed injunction upheld by the Fifth Circuit at the same time it asks the Supreme Court to stay the 10-state injunction upheld by the Eighth Circuit. On the OSHA mandate, once the three-judge Sixth Circuit panel rules on the motion to lift the Fifth Circuit’s stay, the losing party—likely the challengers—will ask the Supreme Court intervene.

The bottom line: the Supreme Court is going to have a busy holiday season ahead of it, and it will soon have the last word on whether these two mandates go into effect while the courts of appeals consider them on the merits.

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December 13, 2021 at 3:15 p.m. ET

The U.S. Court of Appeals for the Eighth Circuit just pending appeal of the Missouri district court’s preliminary injunction enjoining the Centers for Medicare & Medicaid Services vaccine mandate in the 10 states that are part of that lawsuit. Unlike the Eleventh Circuit’s comprehensive opinion rejecting Florida’s arguments challenging the mandate, the Eighth Circuit’s one-page order does not give its reasons for refusing to stay the Missouri district court’s preliminary injunction. Nor does the order indicate which Eighth Circuit judges acted on the federal government’s motion, except for Obama-appointee Judge Jane Kelly, who the order states would have granted the stay.

The Eighth Circuit’s denial of the federal government’s motion means that the CMS vaccine mandate remains enjoined nationwide. The Eighth Circuit’s denial also means that the federal government can now ask the U.S. Supreme Court to stay the Missouri district court’s preliminary injunction, setting up a high court showdown over whether the CMS vaccine mandate should go into effect. And because the CMS mandate is only an interim measure, the Supreme Court’s action on the federal government’s forthcoming application may decide, practically speaking, whether the current CMS mandate ever goes into effect before it is superseded by a final, permanent mandate.

How fast will we have a ruling from the Supreme Court? It depends on how quickly the federal government files its application at the Supreme Court and the schedule the court sets for any response. But the Supreme Court can move fast when it wants to, and my guess is that we will see an order from the high court before the end of the year.

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December 13, 2021 

The federal government on Dec. 10 filed its reply in support of its motion to lift the nationwide stay in the consolidated OSHA-mandate challenges at the Sixth Circuit.  The federal government’s reply argues that the OSHA vaccine mandate is statutorily authorized; constitutional; and appropriate given the circumstances. The federal government’s reply also argues that the Sixth Circuit should modify any injunction so that it only removes the “vaccinate” portion of the “vaccinate-or-test” mandate or so that it allows willing employers to implement a vaccinate-or-test mandate—notwithstanding contrary state law. But it is unlikely that the Sixth Circuit will tailor the injunction in that way; the most likely result is either upholding or vacating the Fifth Circuit’s stay wholesale.

We are now waiting on the Sixth Circuit to act on two motions. First, we are waiting to see whether the court will hear the OSHA mandate case “initially en banc,” meaning by the full 16-judge court rather than a three-judge panel. Second, we are waiting for the court to decide the federal government’s motion to lift the stay. If the court takes the case initially en banc, presumably the full court will decide whether to lift the Fifth Circuit’s stay or not. If the court denies initial hearing en banc, then a 3-judge panel will decide whether to lift the stay, and the ideological composition of that panel may not match the overall conservative bent of the court as a whole. The result of the motion to hear the case initially en banc, then, may strongly influence the result of the motion to lift the Fifth Circuit’s stay. And, as we’ve predicted throughout, whichever party loses before the Sixth Circuit will seek relief from the U.S. Supreme Court. So this does not end with the Sixth Circuit’s rulings.  

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December 8, 2021 at 12:30 p.m. ET

In the consolidated challenges to the OSHA vaccine mandate at the Sixth Circuit, the challengers yesterday filed their (many, uncoordinated) oppositions to the federal government’s motion to lift the Fifth Circuit’s stay. The federal government has until Dec. 10 to file its reply and the motion will then be ripe for decision by the Sixth Circuit. No matter how the court rules, expect the loser to ask the Supreme Court to step in and reverse the Sixth Circuit’s decision.

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December 7, 2021 at 1:24 p.m. ET

The U.S. Court of Appeals for the Eleventh Circuit yesterday issued its explaining why it denied Florida’s motion for an injunction pending appeal.

In a 44-page opinion, the majority of the three-judge panel criticized the Louisiana district court for issuing an almost-nationwide injunction that included Florida, explaining that it was inappropriate given the Florida district court order denying Florida an injunction and unnecessary for national uniformity. The majority also held that the CMS vaccine mandate was likely authorized by the Medicare and Medicaid statutes; that CMS had good cause for bypassing notice-and-comment rulemaking; and that CMS adequately considered all relevant aspects of the mandate before issuing it. The majority further determined that Florida had not proved irreparable harm and that neither the balance of harms or the public interest warranted an injunction pending appeal. The Eleventh Circuit’s opinion is — and is intended to be — a counterweight to the Louisiana and Missouri district court opinions finding the CMS mandate unlawful. And the Eleventh Circuit’s opinion will give the federal government something to cite as it defends the CMS mandate in other courts and potentially at the U.S. Supreme Court.

The question now — as it was yesterday — whether Florida will rest on the preliminary injunction granted by the Louisiana district court or if it will attempt to be the first one to the Supreme Court with an application for an injunction pending appeal. We’ll let you know any updates.

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December 6, 2021 at 10:00 a.m. ET

We have two updates from Dec. 5 in the CMS vaccine-mandate lawsuits.

First, the Eleventh Circuit in a 2-1 order declined to impose an injunction pending appeal in Florida’s challenge. The court of appeals’ one-page order simply states that Florida “failed to make the requisite showing for an injunction pending appeal.” The practical import of the Eleventh Circuit’s order is minimal, because the CMS mandate is still enjoined in Florida as a result of the almost-nationwide injunction issued by the Louisiana district court.

Yet the Eleventh Circuit’s ruling is still crucial for two reasons. First, the Eleventh Circuit’s order promises that “[o]pinions will follow,” meaning that the federal government will soon have a written decision from a federal appeals court taking its side. That decision may influence other courts considering the CMS mandate, including the U.S. Supreme Court. Second, the Eleventh Circuit’s denial allows Florida to seek relief from the U.S. Supreme Court, potentially teeing up a showdown before the high court. But a Supreme Court application is not a certainty given the Louisiana injunction; Florida might opt to rely on the Louisiana injunction rather than risk a Supreme Court application for an injunction pending appeal.

In addition, the federal government filed its reply in support of its motion to stay the Louisiana district court’s injunction in the Fifth Circuit, meaning that the motion is now fully briefed. We are therefore expecting a decision soon on whether the Fifth Circuit will stay the Louisiana district court’s injunction, and we expect that no matter who prevails, the loser will ask the U.S. Supreme Court to step in.

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December 5, 2021 at 12:48 p.m. ET

Some updates from Friday on the CMS and OSHA vaccine mandates

First, we have the federal government’s Fifth Circuit appeal of the Louisiana district court’s order enjoining the CMS mandate almost nationwide. The government, as expected, moved to stay the district court’s injunction pending appeal. Louisiana filed its opposition soon after, and we expect a reply from the federal government shortly, which will tee up the motion for Fifth Circuit action.

Next is the Texas district court challenge brought by the State of Texas. After holding oral argument, the district court agreed to stay the lawsuit because the CMS mandate is already stayed in Texas as a result of the Louisiana district court’s almost-nationwide injunction. So unless the Fifth Circuit stays the Louisiana district court’s injunction, this case will remain on hold.

Finally, there is the consolidated challenges to the OSHA mandate in the Sixth Circuit. The appeals court denied the federal government’s motion to accelerate the briefing schedule for its motion to lift the Fifth Circuit’s nationwide stay. Oppositions to the federal government’s motion to lift the stay remain due Dec. 7, and the federal government’s reply is due Dec. 10. It is unclear how quickly the Sixth Circuit will rule following the completion of briefing, but the OSHA mandate will remain stayed at least through Dec. 10. The Sixth Circuit also denied the federal government’s motion to a set an accelerated briefing schedule for the merits appeal, suggesting that the court is in no rush to decide this case on the merits — or at least not yet.

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December 2, 2021 at 5:30 p.m. ET

The Centers for Medicare & Medicaid Services today issued a confirming that it will not enforce its vaccine mandate while it remains enjoined by the Missouri and Louisiana district courts. The memorandum states that CMS has “suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.” The memorandum further directs that “while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the” mandate. But the memorandum does not state what CMS would do when and if the preliminary injunctions are stayed, such as setting new compliance dates.

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December 2, 2021 at 3:30 p.m. ET

Happy Thursday! We have three small updates in the pending challenges to the CMS vaccine mandate.

First, the federal government, as expected, has appealed the Louisiana district court’s almost-nationwide injunction to the U.S. Court of Appeals to the Fifth Circuit in New Orleans. The federal government soon will ask the Fifth Circuit to stay the district court’s preliminary injunction pending appeal, but has not done so yet.

Second, the U.S. Court of Appeals for the Eighth Circuit, which is hearing the federal government’s appeal from the Missouri district court’s preliminary injunction, has asked for a response to the federal government’s stay motion by Dec. 8. That means the preliminary injunction will remain in effect past the initial Dec. 6 compliance date for the vaccine mandate.

Finally, the U.S. Court of Appeals for the Eleventh Circuit, which is hearing Florida’s appeal from the Florida district court’s order denying a preliminary injunction, asked for a response to Florida’s motion for an injunction pending appeal from the federal government by tomorrow, Dec. 3. But the Eleventh Circuit appeal is of limited practical import because the Louisiana district court’s almost-nationwide injunction covers Florida.

All in all, the CMS vaccine-mandate challenges are gearing up in the courts of appeals. But we still remain some time away from a final word on the vaccine mandate’s fate while challenges take place.

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December 1, 2021 at 2:00 p.m. ET

The State of Play on Legal Challenges to Mandatory Vaccines and What They Could Mean for the Future of the Mandates

It’s been a busy time for challenges to the Centers for Medicare & Medicaid Services and Occupational Safety & Health Administration vaccine mandates. (The OSHA mandate is a “vaccinate-or-test” mandate, but I’ll shorten it to “vaccine mandate.”)

Here’s the bottom line: Both the CMS and OSHA vaccine mandates are on hold nationwide while the federal government asks appellate courts to let them go back into effect. But unless something unusual happens, the mandates will remain on hold past the initial December compliance dates facing facilities and employers.

Let’s start with the challenges to the CMS mandate. States brought challenges to the mandate in district courts in Florida, Missouri, Louisiana, and Texas and sought preliminary injunctions to block the mandate from going into effect. The Florida district court acted first and denied Florida’s request for a preliminary injunction. Florida has appealed to the U.S. Court of Appeals for the Eleventh Circuit and has sought an injunction pending appeal from the appeals court.

Then came Missouri. The Missouri district court Nov. 29 entered a preliminary injunction enjoining the mandate as to facilities in the 10 states that are plaintiffs in that case: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The federal government has appealed the Missouri district court’s decision to the U.S. Court of Appeals for the Eighth Circuit and has asked the appeals court to stay the district court’s preliminary injunction pending appeal.

Next, there was the Louisiana district court. On Nov. 30 it entered a preliminary injunction enjoining the mandate, this time nationwide except for the states covered by the Missouri district court’s injunction. The federal government has not yet appealed the Louisiana district court’s decision, but we expect it to do so soon and to ask the U.S. Court of Appeals for the Fifth Circuit to stay the preliminary injunction pending appeal.

And then there’s Texas. The district court has scheduled oral argument on Texas’ motion for a preliminary injunction for Dec. 2 and will rule soon after. But the practical importance of the court’s decision is minimal because of the preliminary injunctions already imposed by the Louisiana and Missouri district court.

So what does all this mean for the future of the mandates? The CMS vaccine mandate is enjoined, nationwide. The federal government is asking or soon will be asking the courts of appeals to lift those stays to allow the mandate to go into effect, but that will take time to brief and decide. It is therefore almost certain that the first Dec. 6 compliance date will pass with the mandate still enjoined. And with further appeals to the U.S. Supreme Court a certainty after the courts of appeals rule, we may not know the ultimate fate of the CMS vaccine mandate pending appeal until Christmas or even the end of 2021.

Then there’s the OSHA vaccine mandate. The over 40 lawsuits challenging the mandate have been consolidated in the U.S. Court of Appeals for the Sixth Circuit. Before the consolidation, the Fifth Circuit stayed the OSHA mandate nationwide and the federal government has asked the Sixth Circuit to lift the stay. But the Sixth Circuit set a fairly relaxed briefing schedule for the federal government’s motion, with briefing not complete until Dec. 10.

The federal government has therefore asked the Sixth Circuit to accelerate the briefing schedule on the motion to lift the stay, and the challengers have predictably opposed. The challengers also have asked the entire 16-judge court to hear the case rather than the usual three-judge panel, a move called “initial rehearing en banc.” The federal government has opposed, and the motion is now before the Court for decision.

Like the CMS mandate, it is extremely unlikely that the Sixth Circuit will act on the motion to lift the Fifth Circuit’s stay before the initial Dec. 6 compliance date. And with further appeals to the U.S. Supreme Court likely, the final fate of the OSHA mandate while appeals play out may not be decided until Christmas or the end of the year.

But we seem to be getting new rulings almost every day, so follow us here for the latest updates.

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