The U.S. Supreme Court on Friday listened to arguments regarding the issue that has been top of mind for most home-based care providers for the past several months: vaccine mandates.
No decision has been made on whether the Occupational Safety and Health Administration (OSHA) rule, nor the Centers for Medicare & Medicaid Services’ (CMS) mandate, can legally remain in place either temporarily or indefinitely.
But nonetheless, there were noteworthy takeaways from Friday’s hearings.
Of them: a likely opposition from the court on the OSHA rule, which could subject private businesses with 100 workers or more to vaccine and testing requirements. Dubbed a “soft” mandate, workers in these businesses would either have to be vaccinated or test negative on a regular basis to maintain employment.
Businesses were expected to begin planning “in good faith” for the rule by this month and to be fully compliant by Feb. 9.
At the same time, the justices seemed more receptive to the CMS mandate, which would require all home health workers to be vaccinated against the COVID-19 virus.
Under the mandate, CMS would require staff members at home health agencies to receive one COVID-19 vaccine dose by Jan. 27 and to be fully vaccinated by Feb. 28.
The Supreme Court previously held up state health care worker mandates, which laid some precedent. But that still may not mean much in terms of the federal mandate. After all, some of the justices may believe – and hinted to the fact – that states should handle whether or not to issue mandates.
Questions remaining
Right now, Justices Clarence Thomas, Amy Coney Barrett and Samuel Alito all seem to believe that the Biden administration’s OSHA rule is too broad. In other words, it would subject too many workers, many of whom may be at a lessened risk of hospitalization or death if they contracted the virus.
They were receptive to the idea of a more pointed and specific rule, however.
Other justices also questioned whether a federal agency such as OSHA – or CMS, frankly – could issue such regulations without clear approval and authorization from Congress. Around 100 million people in the U.S. would likely be affected by the mandates if they were to be implemented.
Lawyers argued against both mandates by raising the issue of staffing. Particularly the CMS mandate, which would not allow for testing as an opt-out, would leave thousands of health care workers without a job, thus squeezing the labor market for providers, they said.
The OSHA mandate would also create hiked costs for businesses forced to test millions of workers who chose not to be vaccinated, Scott Keller, a lawyer for the National Federation of Independent Business, argued.
On the other end, however, advocates of the mandates made clear the fact that workers would not be – and have not been – fired for not immediately complying. Instead, they’d have time to get vaccinated as required by law, if the mandate did go into effect.
Furthermore, the Supreme Court’s more liberal justices argued that the virus – one that has killed over 800,000 Americans and is currently infecting over half a million Americans per week – is an obvious case for emergency power.
“It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before,” Justice Elena Kagan said.
While it is not clear exactly when a decision will be made, the Supreme Court agreed to hear the case quickly with a truncated briefing schedule to speed the process along.
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