In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states. And, even earlier, a federal judge sitting in Florida entered a November 20, 2021, order denying any temporary restraining order or preliminary injunction against the CMS rule in Florida or any state.

This fast-developing situation now places the fate of the CMS rule in three different appellate courts—the Fifth, Eighth, and Eleventh Circuit courts of appeal—and presumably, eventually in the Supreme Court of the United States.

Finally, a federal judge sitting in Kentucky has entered a preliminary injunction  preventing enforcement of Executive Order (EO) 14042 in those three states, but a nationwide stay of the EO has not yet been ordered. For now, while neither the CMS rule nor the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) mandating vaccination or testing of employees of large employers may be implemented or enforced , the only potential federal preemption of the various state and local laws on the issues of vaccination and testing policies (either requiring or prohibiting them) involves federal contractors and subcontractors covered by EO 14042 that are not located in Kentucky, Ohio, and Tennessee.

At this point, every employer not covered by EO 14042 as outlined above (including those who otherwise had “covered facilities,” as defined by the CMS rule), may want to know the rules in each state and locality in which it conducts business and then design, update, modify, or discontinue its current policies as it sees fit within the parameters allowed in each jurisdiction.

Ogletree Deakins will continue to monitor and report on developments regarding the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.