Supreme Court Blocks Biden's Workplace Vaccine Rules, Allows Requirement for Healthcare Workers

Published in Government Relations on January 13, 2022

Today, Thursday, January 13, 2022, the Supreme Court stopped the Biden administration’s vaccination-or-testing requirement on the nation’s largest employers, expressing doubt that there is legal authority for such a broad mandate.

But the court allowed a different policy, which requires vaccinations for most healthcare workers at the facilities that receive Medicaid and Medicare funds.  (Note: With certain exceptions, DMEPOS suppliers do NOT fall within the policy[1].)

Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh were the only members of the court in the majority of both orders.

Liberal Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have allowed the workplace requirements. Conservative Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett objected to the health-care worker requirements.

The White House said the order covered about 17 million healthcare workers, while the requirement on large companies would have covered more than 80 million employees, about two-thirds of the American workforce.

Background:

The administration had argued both were needed to push Americans to get vaccinated against covid-19.

Lower courts were split on the ability of federal agencies to impose such requirements. The Supreme Court on Friday held a highly unusual oral argument on the policies, lasting more than three and a half hours.

Businesses and 27 Republican-led states asked the court to put on hold the workplace requirements proposed by the Occupational Safety and Health Administration (OSHA), which had been upheld by a lower court.

The Biden administration asked that the requirements for health-care workers, which courts had put on hold for about half the states, be allowed to move forward.

In weighing previous challenges to coronavirus restrictions and requirements, the court has been largely deferential to state responses to the pandemic — but skeptical of the powers of federal agencies.

That seemed to be the case last Friday (January 7) when the court considered the OSHA rule.

Federal law grants OSHA authority to issue emergency rules for up to six months to protect employees “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.” The administration contends that gives OSHA not only the authority but also the responsibility to act.

The temporary rule would give companies with 100 or more workers a choice: mandate all employees be vaccinated or require unvaccinated employees to provide weekly negative coronavirus test results and wear face coverings to work on-site.

The rules were set to take effect Jan. 4, but OSHA pushed back the date in response to the litigation and said it would not immediately issue citations for those not in compliance.

Soon after the administration announced the rules for private companies in November, the U.S. Court of Appeals for the 5th Circuit blocked enforcement of the policy.

But lawsuits emerged around the nation and were consolidated for review by a different court. A panel of the U.S. Court of Appeals for the 6th Circuit dissolved the 5th Circuit’s stay, saying the rules could go into effect.

The other challenged policy was a Centers for Medicare and Medicaid Services vaccination requirement for what the White House says is more than 17 million health-care workers at 76,000 facilities that receive federal money tied to those programs.

The administration points to federal law that gives the secretary of the Department of Health and Human Services the ability to impose requirements necessary for the “health and safety” of patients. For decades, it says, the secretary has had authority to require participating health-care providers to establish programs for the prevention and control of infectious diseases within the facilities.

The states challenging the policy said the federal government did not have such coercive powers over the states. As a practical matter, they said, worker opposition to the vaccine would cost the facilities skilled employees at the time they are most needed.

A panel of the U.S. Court of Appeals for the 11th Circuit dismissed a request from Florida to stop the requirement. But a district judge in Missouri stopped the rules, and the 5th Circuit agreed with a challenge from Louisiana.

Because of the uncertainty surrounding the litigation, OSHA announced that it would not penalize companies for not complying with employee testing requirements before Feb. 9, as long as employers show “reasonable, good faith efforts” to meet the standards.

In response to concerns about a shortage of health-care workers, the administration said the secretary of health and human services has given facilities some flexibility to meet the new requirements, including an additional 60 days to get employees fully vaccinated. The agency also said it will hold off on any enforcement action, as long as 90 percent of the workforce is vaccinated and the facility has a plan to immunize its remaining workers.

The OSHA cases are National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor. The health-care worker cases are Biden v. Missouri and Becerra v. Louisiana.

FAQs relative to the health-care workers ruling:

Q: Which staff are covered under this requirement?

A. This vaccination requirement applies to eligible staff working at almost all CMS-certified facilities that participate in the Medicare and Medicaid programs, regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, and volunteers.

Additionally, this also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.

Q: Does this requirement apply to staff who work offsite?

A: Yes. These requirements are not limited to those staff who perform their duties solely within a formal clinical setting, as many health care staff routinely care for patients and clients outside of such facilities (e.g. home health, home infusion therapy, etc.). To ensure maximum patient protection, all staff who interact with other staff, patients, residents, clients, or PACE program participants in any location beyond the formal clinical setting (such as homes, clinics, other sites of care, administrative offices, off-site meetings, etc.) must be vaccinated.

Q: Does this requirement apply to full time teleworkers?

A: No. Individuals who provide services 100 percent remotely and who do not have any direct contact with patients and other staff, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements outlined in this regulation.

Q: Does this requirement apply to Indian Health Service (IHS) facilities?

A: Generally, yes. Indian Health Service facilities are regulated under the CoPs, therefore the staff vaccination requirement outlined within this regulation applies. Certain tribal FQHCs that do not participate in Medicare but only in Medicaid may not be subject to these requirements.

Q: Are any regulated provider or supplier types excluded?

A: Religious Nonmedical Health Care Institutions (RNHCIs), Organ Procurement Organizations (OPOs), and Portable X-Ray Suppliers are not included in these requirements. FQHCs that do not participate in Medicare are also not covered by these requirements.

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