The U.S. Supreme Court building

The Supreme Court should issue a stay and allow a federal vaccine mandate for most healthcare workers to go into effect immediately nationwide because “any delay in implementing that requirement would cause preventable deaths and severe illnesses,” an attorney for the federal government argued before a special session of the High Court Friday.

“Americans shouldn’t be forced to choose between getting medical help and being exposed,” to COVID-19, said Brian Fletcher, principal deputy solicitor general of the United States, in the second of two hearings on federal vaccine measures that the Court scheduled in advance of its regular winter session.

Justices actively engaged lawyers for both sides in a pair of exceptional hearings that late last month were added to the High Court schedule and took place three days before normal oral arguments were to resume this year. Justice Clarence Thomas, known for saying little at many of the Court’s proceedings, notably jumped into questioning first at both hearings.

At issue is whether two federal rules covering some 100 million workers should be blocked or allowed to proceed as lower courts decide their ultimate fate. Among them is the Centers for Medicare & Medicaid Services’ rule for nursing homes and other healthcare providers currently in effect in 25 states, with enforcement slated to begin on Jan. 27.

Some 17 million healthcare workers at more than 77,000 Medicare and Medicaid providers fall under the CMS conditions. A separate Occupational Safety and Health Administration rule with a vaccine-or-test option would affect 1.8 million workplaces, representing about two-thirds of the private workforce in the U.S.

Many legal experts expected the CMS healthcare worker mandate to have a better chance at becoming freed of temporary injunctions that limited it in half the states. But it was not immediately clear from the tenor of questioning whether that would be the case.

Plaintiffs’ attorneys press state rights

Missouri Solicitor General D. John Sauer called CMS’ mandate “expansive, unprecedented and unlawful.” He told the Court CMS would decimate local communities that run health facilities if allowed to implement it. 

“This mandate will close the door of many of these rural facilities,” he argued. “They will effectively deny our citizens of healthcare.”

Before the hearing, Reliant Care Management, the operator of 21 skilled nursing facilities in mostly rural areas of Missouri, filed a “friend of the court” brief on behalf of the parties seeking to block the mandate. It said it epitomizes many providers around the country who might face massive employee flight if a mandate were imposed.

It projected that 11 of the 21 facilities it managed would “close immediately” since only 661 of 1,723 employees have become vaccinated, “despite Reliant’s encouragement.”

“The raw numbers are staggering, especially in rural communities,” Reliant wrote, criticizing the administration for not offering a comment period before announcing the mandate.

Fletcher, of the Solicitor General’s office, however, said earlier in the hearing’s opening section that Health and Human Services Secretary Xavier Becerra had anticipated and researched claims of potential massive staff departures. He found they are likely overblown, and outweighed by health and safety issues.

“Experience from around the country has shown that even workers who express hesitancy or even strong objections to becoming vaccinated don’t actually end up leaving their jobs in those large numbers when vaccination requirements are imposed — when their employers can help them facilitate vaccination, can counsel them, across the economy,” Fletcher said. “Including in the healthcare sector, including in rural areas, including healthcare systems in North Carolina and Indiana. 

He said that Becerra found “very high levels of compliance,” and that he had sought comment on the issue, and that he had welcomed input from stakeholders about the particular challenges faced by rural hospitals.

“He also explained that any temporary staffing shortages are likely to be relatively minor in the context of this industry, which already faces enormous staff turnover every year,” Fletcher told the justices. “The rate of staff turnover in the healthcare industry in general is about 25% in normal conditions.

“In those circumstances, any marginal additional turnover attributable to the vaccination requirement does not outweigh the need to impose this health and safety measure that, again, is supported by the medical community and already has been adopted by providers around the country.”

Justice Amy Coney Barrett questioned the authority of CMS to regulate in various settings and told the government’s lawyer a statute covering long-term care facilities “is your best because that’s the one that requires skilled nursing facilities to establish and maintain an infection control program. That one gives you a stronger case than ones that don’t mention health and safety at all.”

Diverging paths?

Justices first heard arguments this morning on the OSHA rule, which would require an estimated 80 million workers at companies with 100 or more employees to get vaccinated or submit to regular tests. A temporary injunction blocking that rule nationwide was lifted in mid-December, and enforcement of some measures is set to start Monday, with a vaccination deadline of Feb. 9.

It is highly unusual for the Court to take oral arguments on emergency requests for a stay when not considering a case’s full merits. It’s unclear how quickly the Court will rule in either case, though attorneys have asked for a ruling in the OSHA case before it takes effect on Monday. Both cases could eventually return to allow the Justices to interpret their legality.

In early questioning during the OSHA hearing, Justice Elena Kagan acknowledged that there would be trade-offs for businesses forced to accept a vaccine-or-test rule. But she appeared to argue decisions about how to protect workers should be left to an agency with workplace and health expertise, rather than politically motivated judges.

“The question is: Who decides,” she said. “Why in the world would courts be the one to decide?”

Justices Neil Gorsuch and Brett Kavanaugh raised the issue of whether executive agencies are delegated the power to regulate COVID as a grave danger to workers, or whether Congress would need to explicitly grant that power through legislation. Gorsuch posed the case as an issue of whether such a rule should be made by Congress or the states, rather than a federal body.

Solicitor General Elizabeth B. Prelogar, arguing for the government, explained that OSHA’s efforts are in line with its authority in regulating other “grave” emergencies, such as blood-borne pathogens. She also noted that Congress had allotted the agency additional funding to implement worker-safety measures to mitigate COVID risks. 

“This lies in the heartland of OSHA’s regulatory authority,” she argued. 

CMS arguments

The CMS hearing today, in which arguments began at 12:10 p.m. ET, is in response to two groups of states that had sought the injunctions. A lower federal judge had issued a nationwide injunction, but it was later removed in 25 states that were not originally named as plaintiffs in the case.

“The CMS question is an easier decision, I think, as the statutory authority there is ‘to prevent the spread of infectious/communicable disease,’” Angela Rinehart, an attorney in the healthcare practice group at Indianapolis-based Katz Korin Cunningham told McKnight’s this morning. “Yet both lower courts found that CMS’ requirement was a broad overreach so it will be interesting to see what the Justices focus on there.”

The CMS and OSHA cases differ because the legal authority used by the federal government for each is different, added Christopher C. Purl, a Nashville-based attorney with Bradley and veteran long-term care representative.

The CMS rule is an act of the spending power of government – the requirements are conditions that go along with accepting Medicaid and Medicare funding, while the OSHA rule is an exercise of the federal government’s authority to regulate for safety and welfare.

“It may be easier for the federal government to defend the vaccine mandate under its spending act authority than when acting as regulatory because the government’s response to objections will be, ‘You don’t have to participate in Medicare,’” noted attorney Christopher C. Puri to McKnight’s in pre-hearing comments. Puri practices out of the Nashville office of Bradley Arant Boult Cummings LLP and is counsel for the Tennessee Health Care Association.

In the OSHA case, 26 business groups led by the National Federation of Independent Business are arguing that the agency failed to meet legal requirements showing such an emergency measure is necessary to protect employees. Additionally, Ohio and 26 other states are challenging the rule saying it interferes with states’ sovereignty.

“Our nation’s businesses have distributed and administered hundreds of millions of Covid vaccines to Americans. Businesses have encouraged and incentivized their employees to get vaccines,” attorney Scott A. Keller, representing the National Federation of Independent Business said in a brief opening statement. “But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.”

This is a developing story. Please check back for frequent updates.