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Capitol Correspondence - 11.15.21

Litigation Over OSHA and CMS Vaccination Rules Grows

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On Friday, the Fifth Circuit Court of Appeal’s issued an opinion extending its stay in enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing for employers with 100 or more employees. In addition, several other states have filed challenges to the rule. There is now litigation to challenge the OSHA rule filed in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. The cases will next be consolidated into one lawsuit and the court that will have jurisdiction over the case will be chosen by lottery as early as today. The stay remains in effect for now, but the court chosen in the lottery could choose to lift the stay granted by the Fifth Circuit.

There is also new litigation challenging the Centers for Medicare & Medicaid Services (CMS) interim final rule requiring vaccines for employees in certain Medicare- and Medicaid-funded facilities. On Wednesday, 10 states filed suit in the Eastern District of Missouri requesting to set aside the rule. Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire joined together in filing a complaint alleging substantive and procedural violations of the Administrative Procedures Act and citing the workforce crisis as immediate and demonstrable harm.

Until there is a final ruling on both the OSHA and CMS rules, the ongoing litigation does not delay the enforcement date of either rule. If, for example, the Fifth Circuit’s stay is ultimately lifted, employers covered by OSHA’s ETS will be required to comply with all aspects of the rule by January 4. 2022. While the litigation continues, providers are strongly encouraged to continue to prepare for full implementation of the OSHA and CMS rules.