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January 14, 2022

Health Law Weekly

Supreme Court Allows Health Care Worker Vaccine Mandate, Halts Vaccine-or-Test Rule for Large Employers

  • January 14, 2022
U.S. Supreme Court

The U.S. Supreme Court, in a pair of rulings issued January 13, allowed the administration’s vaccine mandate for health care workers to take effect nationwide, but blocked a vaccine-or-test requirement for large employers. 

The two per curiam opinions came less than a week after the Court heard oral arguments in the vaccine mandate challenges on an expedited basis.

At issue are an emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) requiring all businesses with 100 or more employees to ensure their workers are fully vaccinated or are tested on a weekly basis, and an interim final rule (IFR) issued by the Centers for Medicare & Medicaid Services (CMS) requiring COVID-19 vaccinations for health care workers in hospitals and other facilities and settings that participate in Medicare and Medicaid.

Although the Fifth Circuit initially stayed the mandate for large employers, the Sixth Circuit subsequently dissolved the stay. OSHA previously indicated it would exercise enforcement discretion with respect to the compliance dates of the ETS until January 10 and until February 9 for the testing requirements. The White House said the ETS applies to an estimated 80 million workers.

The divided Court held that various business groups and Republican-led states that challenged the ETS were likely to prevail on their arguments that OSHA lacked authority to impose the vaccine mandate.

According to the unsigned opinion, the Occupational Safety and Health Act empowers the agency “to set workplace safety standards, not broad public health measures.”

Justices Breyer, Sotomayor, and Kagan dissented, arguing the ETS “falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”  

The CMS IFR required more than 10 million health care workers be vaccinated by January 4; however, two courts enjoined the requirement in 24 states. CMS previously pushed the original implementation timeline for the 25 states where injunctions were not in place, giving health care providers until January 27 to ensure workers had the first vaccine dose and until February 28 for the second shot of a two-dose vaccine. 

At the end of last month, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction to ten states after finding CMS likely exceeded its statutory authority in issuing the IFR. The Eighth Circuit denied the administration’s request for a stay of the injunction in the ten states pending appeal.

On November 30, 2021, the U.S. District Court for the Western District of Louisiana enjoined the vaccine mandate in the remaining states not covered under the injunction granted by the Missouri federal district court. The Fifth Circuit also declined to stay that injunction, but narrowed its scope to the 14 states that brought the challenge.

In a separate unsigned opinion, the Court agreed to stay the two injunctions, finding CMS did not exceed its statutory authority in requiring facilities that participate in Medicare and Medicaid to ensure their workers are vaccinated. The Court noted that Congress authorized the Department of Health and Human Services Secretary to impose conditions on the receipt of Medicaid and Medicare funds to protect the health and safety of beneficiaries.

“[E]nsuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the ‘very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19,’” the opinion said.

Justices Thomas, Alito, Gorsuch, and Barrett dissented, disputing the agency's authority to issue the vaccine mandate for Medicare and Medicaid-participating facilities.

“These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. The government “has not made a strong showing that Congress gave CMS that broad authority,” the dissenting opinion said.   

Nat’l Fed. of Indep. Bus. v. Dep’t of Labor, Nos. 21A244 and 21A247 (U.S. Jan. 13, 2022).

Biden v. Missouri, Nos. 21A240 and 21A241 (U.S. Jan. 13, 2022).

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