The Supreme Court has narrowly decided to allow Health and Human Services (HHS) to require COVID-19 vaccination among healthcare facilities employees but blocked the federal government’s broader vaccine-or-mask mandate for employers with at least 100 employees.
Announced Thursday, the former decision passed by a 5-4 vote with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissenting.
“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have,” the top court wrote in its opinion. “Because the latter principle governs in these cases, the applications for a stay … are granted.”
The Supreme Court’s decision overturns roadblocks from the lower courts and paves the way for the Centers for Medicare & Medicaid Services (CMS) to withhold Medicare funds from provider organizations that do not implement a vaccination requirement across their workforce.
The Biden administration previously said it expects healthcare facilities in 25 states unaffected by the district courts’ now-cancelled stay would need to have their staff fully vaccinated by Feb. 28 but did not address the other states at that time.
“Today’s decision by the Supreme Court to uphold the requirement for healthcare workers will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses and others who work there,” President Joe Biden said in a statement following the decision. “It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it.”
The requirement announced in September was broadly applauded by national healthcare industry groups but raised concerns of widespread resignations among facilities already facing a staffing crunch.
The requirement was challenged in court by a broad coalition of rural and conservative-led states. The states had won a pair of federal court decisions to grant a preliminary injunction on CMS’ rule before the Supreme Court announced it would weigh in.
“Now that the Supreme Court ruling has lifted the ban on the CMS vaccine mandate, the AHA will work with the hospital field to find ways to comply that balances that requirement with the need to retain a sufficient workforce to meet the needs of their patients,” American Hospital Association President and CEO Rick Pollack said in a statement following the decision. “We urge any healthcare providers that are not subject to the CMS requirement to continue their efforts to achieve high levels of vaccination.”
Dissenting opinions from Thomas and Alito argued that the “hodgepodge of provisions” and “handful of CMS regulations” cited by the Biden administration provide the authority to enact a nationwide vaccine mandate.
“These cases are not about the efficacy or importance of COVID–19 vaccines,” Thomas wrote in his dissent. “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.”
“Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment,” Alito wrote in his own dissent.
Justices clash over OSHA's public health authority
The other decision, regarding the Occupational Safety and Health Administration’s (OSHA’s) large employer mandate, came to a 6-3 vote with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.
Here, the majority acknowledged the “billions of dollars in unrecoverable compliance causes,” “hundreds of thousands” of jobs at risk of walk-offs, thousands of deaths and “hundreds of thousands” of preventable hospitalizations cited by those for and against the requirement.
However, the court said that it is “not our role to weigh such tradeoffs” and instead considered whether Congress had “indisputably” provided OSHA with the power to regulate broad public health.
“OSHA has never before imposed such a mandate. Nor has Congress,” the court wrote. “Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
In a dissent co-penned by Breyer, Sotomayor and Kagan, the liberal justices said that the court’s decision ignores COVID-19’s spread through person-to-person contact incurred in “nearly all workplace environments.” As such, OSHA acted under its charge in addressing workplace safety by mitigating infection risk, they wrote.
“In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers,” the three judges wrote.
“Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies. We respectfully dissent.”
In a statement, Biden said that he was “disappointed” in the court’s decision to block the “common-sense life-saving requirements” outlined in OSHA’s mandate.
“As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,” the president said. “I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.”
The Supreme Court’s block comes just days after OSHA’s emergency measure was scheduled to go into effect. A fall survey on workplace vaccination policies from Willis Towers Watson (WTW) indicated that many employers who did not enact a vaccination outbreak on their own accord would likely do so if OSHA’s rule remained intact.
“Many employers had already put mandates in place and we believe many will continue to do so where permitted,” Jeff Levin-Scherz, M.D., population health leader at WTW, said in a statement.
“The omicron variant has proven so contagious that it will take very high vaccination rates to quell outbreaks. Employers will continue to evaluate the best ways to keep employees and the community healthy. Some employers will implement mandates going forward – and they will likely tailor this geographically as there will now not be the OSHA preemption of any state laws that restrict employer vaccine mandates,” he said.