On Friday, most Supreme Court justices appeared ready to allow the federal government’s mandate to vaccinate health workers against COVID-19 into effect, while appeals continue in lower courts.
But judges appeared to be more skeptical of the Department of Labor’s ability to demand broad staffing requirements for mostly non-medical businesses to be vaccinated or tested on a weekly basis, and Chief Justice John Roberts wondered if the federal government was trying to circumvent state and congressional powers. through the demand.
On Monday, the Labor Department’s Occupational Safety and Health Administration is to begin enforcing its own non-health rule, although employees will not be required to receive vaccines or weekly tests until Feb.9. The tight deadline means the Supreme Court could deliver decisions as early as Friday night.
During the oral debate, Judges Elena Kagan, Stephen Breuer and Sonia Sotomayor expressed a strong interest in allowing CMS to enforce its mandate. Liberal judges particularly disagreed with the idea that CMS could not demand vaccines to protect Medicare and Medicaid patient safety, and wondered how this policy differs from many of the agency’s many other health policies.
“The only thing you cannot do is kill your patients. … I mean it seems like a pretty simple infection prevention measure, ”Kagan said.
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The federal government argued that CMS should protect the health of beneficiaries, and one way to do this is to limit payments to eligible providers. The administration has said that vaccinations must fall under this category.
But states challenging the mandate argue that CMS has no right to make these kinds of large-scale claims on its own. The mandate is currently pending appeal in 25 states. The Republican-dominated states emphasized that the mandate could lead to a shortage of staff, especially in rural areas.
Healthcare facilities that have implemented their own vaccine requirements have yet to see a massive churn of staff.
Roberts also indicated that he could support the CMS mandate, especially when compared to other federal government’s COVID-19 vaccination policies. Health regulators seem to be more concerned with regulating health threats than, for example, labor regulators, he said.
Judge Amy Coney Barrett indicated that she believes the CMS may have the authority to mandate vaccinations in certain settings, such as long-term care facilities, but not others.
CMS attorney, Deputy Solicitor General Brian Fletcher, argued that the agency could mandate infection control protocols across different care settings. If the court rejects the mandate, he said, it should still consider allowing this requirement in some care settings.
But that’s unlikely, according to Kevin Troutman, a Fisher Phillips partner who is closely following the case. The rush to adjudicate quickly reduces the likelihood that the court will uphold the mandate in some types of institutions and not others, but Barrett’s question is valid, he said.
The CMS mandate ties the vaccination requirement to Medicare and Medicaid funding, which accounts for a large percentage of a hospital’s average operating budget. Conservative judges wonder if the CMS is really trying to dictate employment decisions through this financial connection. The agency is not allowed to make personnel decisions for medical institutions.
Ultimately, the case will depend on whether the mandate will irreparably harm health care providers and their staff. Judge Brett Cavanaugh noted that the states have transferred the mandate to the Supreme Court, not the health workers who are covered by the mandate.
While not all health care providers agree with the federal mandate, many trade organizations such as the American Medical Association and the Association of American College of Medicine support the policy, and individual states and health systems have set their own vaccine requirements.
The Supreme Court also heard arguments on Friday over OSHA’s requirement that employees of companies with 100 or more employees be fully vaccinated against COVID-19 or tested weekly.
The judges seemed less convinced that the agency had the authority to make such ambitious demands without explicit congressional guidance, although more liberal judges again indicated that they believed OSHA was acting in the public interest.
“It seems to me that the government is trying to operate across the coastal strip, and it is just acting from agency to agency,” Roberts told US Solicitor General Elizabeth Prelogar.