Devine Millimet | NH Law Firm


Solal Wanstok, Esq.

December 10, 2021

On November 29, 2021, the U.S. District Court for the Eastern District of Missouri issued an order blocking the Biden administration from implementing an emergency rule promulgated by the Center for Medicare and Medicaid Services (“CMS”). The regulation mandated COVID-19 vaccination by January 4, 2022 for employees and contractors of healthcare facilities participating in the Medicare or Medicaid programs.

10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) filed a lawsuit challenging the rule on November 10, 2021. The Court granted the plaintiffs temporary relief in the form of a preliminary injunction. While the order only blocks implementation of the vaccine mandate pending final resolution of the lawsuit, it could eventually become permanent if the plaintiffs are successful.

On November 30, 2021—one day after the ruling—the U.S. District Court for the Western District of Louisiana granted another preliminary injunction against the CMS emergency rule. The 14 states that filed the lawsuit (Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia) made similar arguments to the 10-state lawsuit discussed above. The scope of this injunction is nationwide, but it does not cover the ten states who are already under the injunction issued by the Eastern District of Missouri.

What happens now?

Under the CMS vaccine mandate, workers in covered healthcare facilities and providers were to receive their first dose by December 6, 2021, and their second dose by January 4, 2022. With these two orders, covered facilities nationwide are no longer required to comply with the prescribed deadlines pending further developments in court. The situation is analogous to the temporary suspension of OSHA’s vaccine mandate for employers with 100 or more employees.

We expect CMS to challenge these rulings, as OSHA did last week when it filed an emergency motion asking the Court to dissolve the stay that prohibits enforcement of its mandate.  

It remains difficult, at this time, to predict when a final ruling will be issued on the enforceability of the vaccine mandate issued by CMS.

Employer Takeaway

Covered employers may still wish to proceed with implementation of the mandate, and nothing in the order prohibits them from doing so. However, compliance is no longer mandatory at this time.

Devine Millimet will continue to closely monitor the legal challenges to both the CMS emergency rule and the OSHA emergency temporary standard, and provide updates as needed. In the meantime, covered employers should contact their Devine Millimet attorney with any questions on the Missouri decision or other compliance issues.


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