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Jan. 7, 2022 — The U.S. Supreme Court appeared to agree Friday with the federal government that it is within its rights to require health care facilities that accept Medicare or Medicaid dollars to vaccinate workers against COVID-19, but justices seemed more skeptical that the government can order other large businesses that they must 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 mandates’ legality in lower courts.
The court could make a decision as soon as this weekend.
Sean Marrotta, 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, agreed that the justices may side with the Biden administration on the health worker mandate.
Chief Justice John Roberts is “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 conservatives justices on the health care mandate as opposed to the workplace rule.”
The requirements — both for health care 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, D.C. and U.S. territories, health workers must have their first COVID-19 vaccine dose by Jan. 27 and the second Feb. 28, unless they have a religious or medical exemption, according to Marrotta.
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 Feb 9.
Medicare and Medicaid money at stake
The Centers for Medicare and Medicaid Services in November said it would require all health care 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, added Sotomayor, the federal government had the right to decide whether it wanted to pay for certain services. The law allows the federal government to say, “if you want my money, your facility has to do this,” said Sotomayor.
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, the 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 Armondo 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 health care 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, American College of Physicians, American Academy of Family Physicians, and 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 American Association of Medical Colleges, 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 coronavirus, said Janice Orlowski, MD, chief health care officer of 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 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 Businesses (NFIB), 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,” said Keller.
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 believed not all workplaces presented risk, and that with the Omicron variant, “vaccines do not appear to be very effective in stopping the spread of transmission.”
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