High Court Seems More Likely to Accept Health Care Worker Vaccine Directive

[Update: On Jan. 13, the U.S. Supreme Court blocked OSHA's vaccine-or-testing rule for large private employers but allowed the CMS to move forward with its directive for certain health care workers.]

Although the U.S. Supreme Court has yet to issue a ruling in either case before it challenging the Biden administration's COVID-19 vaccination policies, the court seemed more receptive to the rule covering certain health care workers than the directive for private employers. Oral arguments in each case were heard on Jan. 7.

"The Supreme Court is not being called upon to rule on the validity of either of these two rules," noted law firm Fisher Phillips. "Instead, the Supreme Court accepted the cases to review whether the temporary injunctions that had been issued to block the rules were properly put into place." 

Predicting how the justices will rule based on their questions at oral argument is difficult, but some attorneys have weighed in. Fisher Phillips polled 33 of its attorneys who are closely following the cases, and the vast majority (79 percent) predict that the Centers for Medicare & Medicaid Services' (CMS') health care mandate will be allowed to move forward; only a small majority (55 percent) think the high court will give the green light to the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard (ETS) for private employers.

Ian Carleton Schaefer, an attorney with Loeb & Loeb in New York City, noted that COVID-19 cases and hospitalizations are continuing to surge.

"It would be difficult to imagine that the rapid spread of omicron and the efficacy of vaccinations to prevent serious health conditions for those who do contract the variant will not weigh heavily into the arguments before the court and the court's ultimate decision," he said.

Distinguishing Between the Two Rules

Under OSHA's ETS, businesses with at least 100 employees must prepare a written COVID-19 vaccine-or-testing policy, ask about the vaccination status of each employee, obtain acceptable proof of vaccination, maintain a list of employees and their vaccination statuses, and require unvaccinated workers to wear masks.

If the rule isn't blocked by the high court, covered employers will have until Feb. 9 to ensure that all unvaccinated employees undergo COVID-19 testing on at least a weekly basis and refrain from entering the worksite if they test positive.

The CMS health care rule is more specific. While it doesn't allow for a testing alternative to vaccination, the directive applies only to Medicare- and Medicaid-certified providers and suppliers, including hospitals, long-term-care facilities, ambulatory surgical centers, hospices and psychiatric residential treatment facilities.

The CMS is a federal agency that only regulates organizations that choose to participate in the Medicare and Medicaid systems. "An employer's choice to voluntarily subject itself to CMS' rules could reduce its basis for challenging any of CMS' rules," Fisher Phillips explained.

Notably, the CMS directive is tied to federal funding. Chief Justice John Roberts Jr. said during oral argument that the spending clause of the U.S. Constitution gives the secretary of health and human services authority "to impose requirements that … the secretary finds are necessary in the interest of the health and safety of patients."

With the OSHA ETS, however, the justices raised concerns about the agency issuing a broad rule on a hazard that is prevalent outside of the workplace.

"Traditionally, OSHA has had rules that affect workplace hazards that are unique to the workplace and don't involve hazards that affect individuals 24 hours a day," noted Justice Neil Gorsuch.

OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:

• Employees are exposed to grave danger from the hazard.
• The ETS is necessary to protect employees from that danger.
  

Mark Kittaka, an attorney with Barnes & Thornburg in Fort Wayne, Ind., noted that Roberts was critical in his questioning of OSHA's authority to issue the vaccine-or-testing rule when it appeared that various agencies, including the CMS, were issuing their own mandates.   

Gorsuch echoed that sentiment. "As the chief justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act," he said during the OSHA ETS arguments.

During the CMS arguments, Roberts asked, "Which is a more acute danger: OSHA, CMS or the federal contractor vaccine mandate?"

Brian Fletcher, deputy solicitor general for the Department of Justice, said they are all important rules, and Roberts replied, "I thought you might have said we're dealing here in this case with health care—with Medicare and Medicaid—and what could be closer to addressing the COVID-19 problem … than health care? I mean, people already get sick when they go to the hospital. But, if they go and face COVID-19 concerns, well, that's much worse."

Be Prepared

Covered employers shouldn't wait for a Supreme Court ruling to prepare for the rules, according to employment law attorneys. Many parts of the OSHA ETS—other than the COVID-19 testing rule for unvaccinated workers—took effect on Jan. 10.

"Since there is no stay in effect as of [Jan. 10], all covered employers should implement their policies," Kittaka said.

Employers should note, however, that OSHA won't enforce the testing requirement until Feb. 9.

OSHA allows states to develop their own workplace health and safety plans, so long as those plans are "at least as effective" as the federal program. Kittaka noted that states with such plans are supposed to adopt programs within 30 days of the federal OSHA, but they may be delayed in this case.

"But even employers in state-plan states should prepare for the eventual adoption of the federal standards while we await the decision of the Supreme Court," he said.

Employers that are covered by the CMS health care directive should note that the compliance dates have been extended. Workers must receive their first COVID-19 vaccine dose by Jan. 27 and be fully vaccinated by Feb. 28. Additionally, employers must track employees' vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations. 

Health care employers should note that state attorneys general challenged the health care rule in multiple lawsuits with different outcomes. The 5th U.S. Circuit Court of Appeals lifted a district court's order that had blocked the directive nationwide, but the requirement remains blocked in 25 states. 

The CMS said it will enforce the rule in locations where it is not blocked. But Fletcher noted at oral argument that the secretary of health and human services will be flexible.

"The secretary has always exercised enforcement discretion before terminating a provider from the program," he said.