CMS Vaccine Mandate Update: Eighth Circuit Refuses Reinstatement of Vaccine Mandate for Healthcare Workers

The Centers for Medicare and Medicaid Services’ (CMS) Interim Final Rule (IFR) requiring COVID-19 vaccination for covered healthcare staff has been met with challenge after challenge.  These roadblocks to enforcement will persist under a new decision from the U.S. Eighth Circuit Court of Appeals.

On December 13, 2021, the Eighth Circuit denied the Biden administration’s request to lift a Missouri district court’s preliminary injunction that blocked the vaccine mandate in 10 states.  In effect, the Eighth Circuit decided to preserve the halting order and refused to reinstate the IFR requiring COVID-19 vaccination for healthcare workers.

The Tumultuous History to CMS’ Vaccine Mandate

As a reminder, CMS’ vaccine mandate faced two major challenges at the end of November resulting in preliminary injunctions, which stopped CMS from implementing or enforcing the IFR until either the court ordered otherwise or until a trial is conducted on the merits.  On November 29, 2021, Baird Holm reported on a federal court order out of Missouri which halted the Biden administration’s enforcement of a vaccine mandate for healthcare workers in 10 states—Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire.  This injunction order was quickly appealed by the Biden administration to the Eighth Circuit.

On November, 30, 2021, a Louisiana federal court issued a separate preliminary injunction to halt enforcement of the CMS rule nationwide by covering all states not addressed by Missouri court’s order.  At this time, no appellate decision has yet been made for the nationwide injunction out of Louisiana, but the issue is pending before a conservative-leaning U.S. Fifth Circuit Court of Appeals. 

The Long Road Ahead

The Eighth Circuit did not explain its refusal to reinstate CMS’ mandatory vaccination rule.  In the meantime, the Missouri and Louisiana courts’ preliminary injunction orders remain in place to halt enforcement of the IFR.

On December 2, 2021, CMS stated its plan to suspend implementation and enforcement activities for the vaccine mandate while it waited for future litigation developments.  It seems like this wait-and-see approach will continue following the recent decision out of the Eighth Circuit.

It is possible that the appellate court’s denial opens the door for the Supreme Court to weigh in on staying the Missouri court’s preliminary injunction.  We will continue to monitor pending litigation for further developments.