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The US Supreme Court appeared to agree Friday with the federal government that it is within its rights to require that healthcare facilities that accept Medicare or Medicaid dollars vaccinate workers against COVID-19, but justices seemed more skeptical that the government can order large businesses to require employees to be vaccinated or get regularly tested.
The justices heard arguments for almost 3 hours on Friday in two cases that will decide whether the federal requirements can stay in place, while businesses and 25 states challenge the mandate’s legality in lower courts.
The court could make a decision as soon as this weekend.
Sean Marotta, an appellate and Supreme Court attorney who is outside counsel for the American Hospital Association, said on Twitter that he expects the justices to block the business vaccinate-or-test requirement for being “too broad and not clearly authorized.”
On the health worker vaccination requirement, “It may be close, but I am tentatively predicting there are at least five votes to uphold the mandate in full and maybe six votes to uphold it in large portion,” he tweeted.
Jonathan Turley, a more-conservative-leaning attorney at George Washington University Law School, agreed that the justices may side with the Biden administration on the health worker mandate.
Chief Justice John Roberts is “expressing skepticism that dealing with an infectious disease in this way is not within the” government’s authority, Turley tweeted during the arguments. He also noted that “there is a marked difference in the questions from the conservative justices on the health care mandate as opposed to the workplace rule.”
The requirements — both for healthcare facilities and employers — would only be in effect for 6 months.
Because of lower court rulings, the health worker mandate is currently on hold in 25 states that have challenged it. In the other states, Washington, DC, and US territories, health workers must have their first COVID-19 vaccine dose by January 27 and the second by February 28, unless they have a religious or medical exemption, according to Marotta.
The workplace rule requires that businesses submit a compliance plan by Monday and that unvaccinated workers start wearing a mask that day. Enforcement of the rule begins February 9.
Medicare and Medicaid Money at Stake
The Centers for Medicare and Medicaid Services (CMS) in November said it would require all healthcare facilities that receive Medicare or Medicaid payments to vaccinate their workers. The policy would cover more than 17 million health workers at 76,000 facilities.
The government said it has the legal authority to require vaccination because it is necessary to protect the “health and safety” of patients — an argument it repeated at the Supreme Court.
Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer all agreed that it was within CMS’s purview to institute such a requirement, equating it to infection control measures already required by the agency. Also, Sotomayor added, the federal government has the right to decide whether it wants to pay for certain services. The law allows the federal government to say, “if you want my money, your facility has to do this,” Sotomayor said.
But Justice Neil Gorsuch said the government did not have the right to “commandeer” private businesses through its spending. “You cannot use money as a weapon to control these things,” said Gorsuch, who repeatedly indicated that he saw the rule as an abrogation of states’ rights.
Elizabeth Murrill, Deputy Solicitor General of Louisiana — who was calling into the court because she had COVID-19 — called the CMS rule “a bureaucratic power move that is unprecedented.”
Added Murrill: “This case is not about whether vaccines are effective, useful or a good idea. It’s about whether this federal executive branch agency has the power to force millions of people working for or with a Medicare or Medicaid provider to undergo an invasive, irrevocable, forced medical treatment, a COVID shot.”
Missouri Deputy Solicitor General Jesus Armando Osete also argued that the measures were a federal overreach and that only states had the power to mandate vaccination. The requirement will drive rural hospitals out of business as healthcare workers quit rather than be vaccinated, he said.
Ultimately, it will “devastate local economies,” Osete said.
But Justice Brett Kavanaugh wanted to know why hospitals hadn’t joined in the suit.
“Where are the regulated parties complaining about the regulation?” Kavanaugh said. “There’s a missing element here.”
Sixteen medical societies filed a friend-of-the-court brief arguing that vaccination of health workers is essential to containing the spread of COVID-19 and protecting worker and patient health.
The organizations — including the American Medical Association, the American College of Physicians, the American Academy of Family Physicians, and the American Academy of Pediatrics — also said that few health workers have quit in the face of ongoing vaccination requirements. At Indiana University Health, only 0.3% of employees quit after the vaccine mandate was instituted, they said.
Frank Trinity, chief legal officer of the Association of American Medical Colleges (AAMC), told reporters before the hearing that only about 1% of hospital workers have quit in the face of mandates. Meanwhile, some 5% to 7% of workers have been out sick with the coronavirus, said Janis Orlowski, MD, chief healthcare officer of the AAMC.
Will Private Business Workers Quit?
Private businesses also argued that the federal requirement for vaccination would drive workers to quit.
Twenty-six trade associations petitioned the court to immediately stop enforcement of the Occupational Safety and Health Administration’s (OSHA’s) emergency rule that employers with 100 or more workers either require all employees to be vaccinated or allow unvaccinated employees to provide weekly negative coronavirus tests and wear face coverings at work.
OSHA estimated that the mandate could spur some 22 million Americans to get vaccinated and that it would prevent 250,000 hospitalizations.
The businesses argued in their filing that OSHA did not have the authority to issue the rule and that it should have had a longer process for public comment. They also said businesses would suffer irreparable harm by having to take on the cost of testing, which might be passed on to consumers or workers, who might then quit.
Roberts questioned why OSHA would not have the authority to address what he called a “special workplace problem.” He said he viewed the agency as acting in an “effective way to address the problem,” adding that there “is some pressing urgency,” given the ongoing pandemic.
Scott Keller, the lead attorney for the National Federation of Independent Business, said the OSHA rule was “unprecedented” because the agency had never before required a vaccination.
Keller also said the rule needed to be stopped immediately. “As soon as businesses have to put out their plans and this takes effect, workers will quit,” he said. “That itself will be a permanent worker displacement that will ripple through the national economy,” Keller said.
Justice Kagan said she viewed the workplace as an essential area for the government to institute measures to control the spread of COVID-19. And that it is uniquely risky because workers can’t control their exposure. “Where else do people have a greater risk than the workplace?” Kagan said.
Benjamin Michael Flowers, who argued on behalf of the state of Ohio (and who also called in because he has COVID-19), said he believes not all workplaces present risk, and that with the Omicron variant, “vaccines do not appear to be very effective in stopping the spread of transmission.”
Alicia Ault is a Lutherville, Maryland-based freelance journalist whose work has appeared in publications including JAMA, Smithsonian.com, the New York Times, and the Washington Post. You can find her on Twitter @aliciaault.