December 30, 2021

While the Centers for Medicare & Medicaid Services (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Rule (“CMS Vaccine Requirement”) heads to the Supreme Court, CMS will resume enforcement in the half of U.S. states not currently covered by an injunction.

On January 7, 2022, the U.S. Supreme Court will hear arguments regarding the Vaccine Requirement and the injunctions currently in place in for about half of states. Previously, a federal district court had enjoined the rule nationwide, but the 5th Circuit Court of Appeals narrowed that injunction to states which were actually a party to the case. The Biden Administration appealed the injunctions in both that 5th Circuit case and in a case from the 8th Circuit, and the Supreme Court granted the administration’s emergency application.

During the period of the nationwide injunction, CMS had issued guidance clarifying that it would not be enforcing the Vaccine Requirement while preliminary injunctions were in effect. Now that the 5th Circuit has partially stayed the injunction, however, CMS will resume enforcement in the following states, which are not parties in the ongoing litigation: 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.

Pursuant to the new guidance, workers in covered health care facilities in these states will need to have obtained the first dose of a COVID-19 vaccine by January 27, 2022 in order for the facility to be considered compliant. While CMS will work with facilities, continued non-compliance may ultimately lead to civil monetary penalties or termination from federal health care programs, among other possible consequences.

Facilities should continue working on policies and procedures to comply with the Vaccine Requirement, though with the Supreme Court likely to weigh in soon, the situation is far from resolved.