The majority of Supreme Court justices on Friday seemed willing to let the federal government’s healthcare worker COVID-19 vaccine mandate go into effect while appeals continue in lower courts.
But justices seemed more skeptical of the Labor Department’s ability to require a broad requirement for staff at primarily non-healthcare businesses to be vaccinated or get tested weekly, with Chief Justice John Roberts questioning if the federal government is trying to work around state and congressional powers through the requirement.
The Labor Department’s Occupational Safety and Health Administration is set to begin enforcement of its own non-healthcare-specific rule on Monday, though employees won’t be required to get vaccines or weekly tests until Feb. 9. The tight deadline means the Supreme Court could issue rulings as soon as Friday evening.
During oral arguments, Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor indicated a strong interest in letting CMS enforce its mandate. The liberal-leaning justices took particular issue with the idea that CMS can’t require vaccines to protect the safety of Medicare and Medicaid patients, and questioned how this policy is different from so many other healthcare regulations put out by the agency.
“The one thing you can't do is to kill your patients. … I mean, that seems like a pretty basic infection prevention measure,” Kagan said.
The federal government argued CMS has to protect beneficiaries’ health, and one way to do that is by restricting payment to providers that meet certain qualifications. Vaccinations should fall under this umbrella, the administration said.
But states challenging the mandate contend CMS doesn’t have the authority to make this kind of sweeping requirement by itself. The mandate is currently stayed in 25 states pending appeal. The states, which are predominantly Republican-led, emphasized that the mandate could lead to staffing shortages, especially in rural areas.
Healthcare facilities that implemented their own vaccine requirements have not seen large exoduses of staff so far.
Roberts also indicated he could be in favor of letting the CMS mandate stand, especially in comparison to other COVID-19 vaccination policies from the federal government. Healthcare regulators seem to have more of a connection to regulating health threats than labor regulators, for example, he said.
Justice Amy Coney Barrett indicated she thought CMS might have the authority to institute a vaccine mandate in certain facilities, like long-term care, but not others.
CMS’ lawyer, Deputy Solicitor General Brian Fletcher, argued the agency can mandate infection control protocols across different care sites. If the court shoots down the mandate, it should still consider allowing the requirement in some care settings, he said.
But that’s unlikely, according to A. Kevin Troutman, a partner at Fisher Phillips who’s been following the case closely. The pressure to issue a ruling quickly makes it less likely that the court will let the mandate stand in some facility types and not others, but Barrett’s question is a valid one, he said.
CMS’ mandate ties the vaccination requirement to Medicare and Medicaid funding, which makes up a large percentage of the average healthcare facility operating budget. Conservative-leaning justices questioned whether CMS is effectively trying to dictate employment decisions with that financial tie. The agency is not allowed to make staffing decisions for healthcare facilities.
Ultimately, the case will rest on whether the mandate creates an irreparable harm for healthcare providers and their staff. Justice Brett Kavanaugh pointed out that states brought the mandate to the Supreme Court—not the healthcare workers being regulated by this mandate.
While not every healthcare provider agrees with the federal mandate, many trade organizations like the American Medical Association and the Association of American Medical Colleges do support the policy, and individual states and health systems have instituted their own vaccine requirements.
The Supreme Court also heard arguments Friday over OSHA's requirement that employees at companies with 100 or more staff get fully vaccinated against COVID-19 or tested weekly.
Justices seemed less convinced that the agency had the authority to make such a sweeping requirement without express direction from Congress, though the more liberal justices again indicated they felt OSHA was acting in the public interest.
“It seems to me that the government is trying to work across the waterfront, and it's just going agency by agency,” Roberts told U.S. Solicitor General Elizabeth Prelogar.