CMS Vaccine Mandate Update: Last, but Not Least, Texas Joins the Rest of the Country

On January 13, 2022, the Supreme Court of the United States issued an opinion staying preliminary injunctions issued in cases filed in Missouri and Louisiana challenging the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccination mandate for healthcare providers. The ruling stayed preliminary injunctions applicable to twenty-four states. Twenty-five states were already subject to enforcement under the CMS rule. This left Texas standing alone and in limbo.

Dismissal of the Texas Case

On January 14, 2022, CMS filed in the U.S. District Court for the Northern District of Texas a motion to stay the preliminary injunction applicable to the State of Texas, pending the resolution of an interlocutory appeal that CMS filed with the U.S. Court of Appeals for the Fifth Circuit on the same day. The district court ordered the State of Texas to file its response to CMS’s motion by January 18, 2022.

On January 18, 2022, the State of Texas filed a motion to dismiss the case without prejudice. It also filed a response to CMS’s motion for stay, arguing that it was moot because Texas sought to dismiss the case.

CMS filed a reply memorandum on January 19, 2022, arguing that its motion to stay was not moot until the case was dismissed and requesting that the court either grant its motion to stay or dismiss the case by 5:00 p.m. on January 19, 2022.

The district court issued an order dismissing the lawsuit without prejudice on January 19, 2022, allowing CMS to enforce the vaccine mandate nationwide.

New CMS Deadlines Applicable to Texas

On January 20, 2022, CMS issued new guidance setting forth the following compliance deadlines for Texas:

• By February 19, 2022, covered facilities in Texas must have their vaccination processes and plans in place, and all covered staff must at least have taken their first dose of a vaccine or have a pending exemption request to be in compliance with the CMS rule.
• By March 21, 2022, all covered staff must be fully vaccinated against COVID-19 or have received an exemption to be in compliance with the CMS rule.

All prior deadlines set for the other forty-nine states remain unchanged.

Takeaways

Covered facilities in Texas may want to consider dusting off their vaccination processes and plans and restarting the implementation process, if they have not already done so. With Texas’s state vaccine executive order in conflict with the CMS rule, Texas employers may also want to ensure their policies make clear that their CMS-compliant policies apply to CMS-covered facilities and preempt the executive order.  On the other hand, for any employee not working in a CMS-covered facility, another policy and/or the provisions of the executive order may apply to them.

Ogletree Deakins will continue to monitor and report on developments with respect to 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.