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The United States Supreme Court appeared to agree with the federal government on Friday that it is within its rights to require health facilities that accept Medicare or Medicaid dollars to vaccinate workers against COVID-19, but judges seemed more skeptical that the government can order large corporations to require employees to get vaccinated or get tested regularly.
Judges heard arguments for nearly 3 hours on Friday in two cases that will decide whether federal requirements can remain in place, as businesses and 25 states challenge the legality of the warrant in lower courts.
The court could render a decision as early as this weekend.
Sean Marotta, an Appeals and Supreme Court attorney who is outside counsel for the American Hospital Association, said on Twitter that he expects judges to block the requirement to vaccinate or to test the company because it is “too broad and not clearly authorized”.
Regarding the requirement to immunize health workers, “It may be close, but I tentatively predict that there are at least five votes to keep the mandate in its entirety and maybe six votes to keep it going. great part, ”he tweeted.
Jonathan Turley, a more conservative lawyer at George Washington University Law School, agreed that judges could side with the Biden administration on the mandate of health workers.
Chief Justice John Roberts “expresses his skepticism that treating an infectious disease in this way is not within the authority” of the government, Turley tweeted during arguments. He also noted that “there is a marked difference in the questions of conservative judges on the mandate of health care as opposed to the rule of the workplace”.
The requirements – for both healthcare facilities and employers – would only be in effect for 6 months.
Due to inferior court rulings, the health worker tenure is currently on hold in 25 states that have challenged it. In the rest of the states, Washington, DC and the U.S. Territories, health workers must have their first dose of COVID-19 vaccine by January 27 and the second by February 28, unless they have one. religious or medical exemption, according to Marotta.
The workplace rule requires companies to submit a compliance plan by Monday and unvaccinated workers to start wearing a mask that day. Application of the rule begins on February 9.
Medicare and Medicaid money at stake
The Centers for Medicare and Medicaid Services (CMS) said in November that they would require all healthcare facilities that receive Medicare or Medicaid payments to immunize their workers. The policy would cover more than 17 million health workers in 76,000 facilities.
The government has said it has the legal power to require vaccination because it is necessary to protect the “health and safety” of patients – an argument it repeated in the Supreme Court.
Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer all agreed it was up to CMS to institute such a requirement, equating it with infection control measures already required by the agency. In addition, Sotomayor added, the federal government has the right to decide whether it wants to pay for certain services. The law allows the federal government to say, “If you want my money, your institution has to do it,” Sotomayor said.
But Judge Neil Gorsuch said the government had no right to “requisition” private companies through its spending. “You can’t use money as a weapon to control these things,” said Gorsuch, who has repeatedly indicated that he sees the rule as a repeal of state rights.
Elizabeth Murrill, assistant attorney general of Louisiana – who appeared in court because she had COVID-19 – called the CMS rule an “unprecedented bureaucratic power move.”
Murrill added: “This case is not whether vaccines are effective, useful or a good idea. It is whether this federal executive agency has the power to force millions of people working for or with a Medicare or Medicaid provider to undergo invasive treatment, irrevocable and forced medical treatment, COVID vaccine. ”
Missouri Assistant Attorney General Jesus Armando Osete also argued that the measures were overly federal in scope and that only states had the power to mandate vaccination. This requirement will bankrupt rural hospitals, as healthcare workers will quit rather than be vaccinated, he said.
Ultimately, it will “devastate local economies,” Osete said.
But Judge Brett Kavanaugh wanted to know why the hospitals had not joined the lawsuit.
“Where do regulated parties complain about regulation? Kavanaugh said. “There is something missing here.”
Sixteen medical companies have filed a friend of the court brief claiming that vaccinating healthcare workers is essential to contain the spread of COVID-19 and protect the health of workers and patients.
Organizations – including the American Medical Association, the American College of Physicians, the American Academy of Family Physicians, and the American Academy of Pediatrics – have also said few health workers have quit in the face of immunization requirements in Classes. At Indiana University Health, only 0.3% of employees quit after the vaccination mandate was instituted, they said.
Frank Trinity, legal director for the Association of American Medical Colleges (AAMC), told reporters ahead of the hearing that only about 1% of hospital workers had quit in the face of tenure. During that time, about 5% to 7% of workers came out sick from the coronavirus, said Janis Orlowski, MD, director of health for the AAMC.
Will private sector workers quit?
Private companies have also argued that the federal vaccination requirement will prompt workers to quit.
Twenty-six professional associations have called on the court to immediately end the application of the Occupational Safety and Health Administration (OSHA) emergency rule that employers with 100 or more workers require all employees to be vaccinated or allow unvaccinated employees to provide weekly negative coronavirus tests and wear face coverings at work.
OSHA estimated that the warrant could encourage some 22 million Americans to be vaccinated and that it would prevent 250,000 hospitalizations.
The companies argued in their case that OSHA did not have the authority to issue the rule and that it should have had a longer process for public comments. They also said companies would suffer irreparable harm if they had to bear the cost of the tests, which could be passed on to consumers or workers, who could then quit.
Roberts wondered why OSHA wouldn’t have the power to deal with what he called a “special problem in the workplace.” He said he viewed the agency as acting “in an effective manner to resolve the problem,” adding that there was “an urgent emergency” given the ongoing pandemic.
Scott Keller, senior counsel for the National Federation of Independent Businesses, said OSHA’s rule was “unprecedented” because the agency had never required a vaccination before.
Keller also said the rule must be stopped immediately. “As soon as companies have to publish their plans and it takes effect, workers will quit,” he said. “This in itself will be a permanent displacement of workers which will spill over into the national economy,” Keller said.
Justice Kagan said she sees the workplace as a critical area for the government to institute measures to control the spread of COVID-19. And that it is particularly risky because workers cannot control their exposure. “Where are people at greater risk than the workplace? Kagan said.
Benjamin Michael Flowers, who has advocated on behalf of the state of Ohio (and who also called because he has COVID-19), said he believes not all workplaces are risky , and that with the Omicron variant, “the vaccines do not appear to be very effective in stopping the spread of transmission.”
Alicia Ault is a freelance journalist based in Lutherville, Md., Whose work has appeared in publications such as JAMA, Smithsonian.com, the New York Times, and the Washington post. You can find her on Twitter @aliciaault.