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SCOTUS allows vaccine mandate for health care workers

In a decision opposed to its OSHA ruling issued on the same day, the US Supreme Court (SCOTUS) has allowed the federal government to mandate COVID vaccinations for health care workers. From Amy Howe at SCOTUSblog:

With COVID-19 cases and hospitalizations reaching a new record high as a result of the Omicron variant, the Supreme Court on Thursday put the Biden administration’s vaccine-or-test mandate for large employers on hold, while litigation over its legality continues in the lower courts. Over a dissent from the court’s three liberal justices, the court ruled that the Occupational Safety and Health Administration exceeded its power in issuing the mandate. Congress may have given OSHA the power to regulate workplace dangers, the court explained, but it “has not given that agency the power to regulate public health more broadly.” At the same time, the justices – by a vote of 5-4 – granted the administration’s request to be allowed to temporarily enforce a vaccine mandate for health care workers at facilities that receive federal funding.

The orders that the justices issued on Thursday afternoon were the latest chapter in the fast-moving vaccine disputes. After the cases came to the Supreme Court in December on an emergency basis, the justices opted to expedite the cases for oral argument on whether the mandates can remain in place while the challenges proceed in the lower courts. The court heard nearly four hours of arguments on the policies on Jan. 7 and issued a pair of unsigned opinions just six days later.

Regarding the health care case specifically, Howe writes:

In an unsigned opinion, the court emphasized that a key responsibility of the Department of Health and Human Services is “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” To do so, HHS has long required those providers to comply with a variety of conditions if they want to receive Medicare and Medicaid funding. Because COVID-19 “is a highly contagious, dangerous, and — especially for Medicare and Medicaid patients — deadly disease,” HHS determined that a vaccine mandate was necessary to protect patients because it would decrease the chances that health care workers would both contract the virus and pass it on to their patients. Such a mandate, the court wrote, “fits neatly within” the power given to HHS by Congress.

The OSHA ruling was 6-3, the health care worker ruling was 5-4. The swing vote was Justice Kavanaugh.

Dissenting Justices Thomas, with concurring Justices Alito, Gorsuch, and Barrett, wrote:

The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. We presume that Congress does not hide “fundamental details of a regulatory scheme in vague or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Yet here, the Government proposes to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a “fundamental detail” of the statutory scheme. Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere — specifically authorize one.

Health care industry organization responds to the ruling

Nursing Home Industry Reacts to Supreme Court Ruling on Health Care Worker Vaccine Mandate

The American Health Care Association (AHCA), representing more than 14,000 nursing homes and long term care facilities across the country that provide care to approximately five million people each year, released the following statement in reaction to the U.S. Supreme Court upholding the vaccine mandate for health care workers.

The statement is attributable to Mark Parkinson, president and CEO of AHCA.

“We respect the ruling of the U.S. Supreme Court but remain concerned that the repercussions of the vaccine mandate among health care workers will be devastating to an already decimated long term care workforce. When we are in the midst of another COVID surge, caregivers in vaccine hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation’s seniors. We continue to ask that CMS and state surveyors show leniency during this critical time as well as consider a regular testing option for unvaccinated staff members to prevent worsening staff shortages.

“Long term care providers have been relentless in encouraging staff to get vaccinated, and we have made considerable progress with 83 percent of nursing home staff now fully vaccinated. However, rampant misinformation has sowed doubt and concern among many on the frontlines. We must collectively address the root cause of vaccine hesitancy rather than penalize providers who are making valiant efforts.”