The Supreme Court could support a mandate for a vaccine against COVID for health workers

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January 7, 2022 – The U.S. Supreme Court appears to have agreed with the federal government on Friday that it has the right to require health care facilities that accept Health Care or Medicaid dollars for vaccinating workers against COVID-19, but judges seemed more skeptical that the government could order other large companies to require employees to be vaccinated or tested regularly.

Judges listened for nearly 3 hours on Friday to arguments in two cases that will decide whether federal requirements can remain in force as companies and 25 states challenge the legality of mandates in lower courts.

The court could make a decision as early as this weekend.

Sean Marrotta, an appeals attorney and Supreme Court attorney who is an outside attorney for the American Hospital Association, said on Twitter that he expects judges to block business vaccination or testing requests because it is “too broad and not clearly authorized.”

On the request for vaccination of health workers: “It may be close, but I provisionally predict that it will have at least five votes to confirm the mandate in its entirety and maybe six votes to support it in large part.”

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Jonathan Turley, a more conservative lawyer at George Washington University, agreed that judges could side with the Biden administration regarding the mandate of health workers.

Chief Justice John Roberts “expresses skepticism that dealing with a contagious disease in this way is not within government authority,” Turley tweeted during the hearings. He also noted that “there is a marked difference in the questions of conservative judges about the mandate of health care in relation to the rule of the workplace.”

The requirements – for both healthcare institutions and employers – would only be in force for 6 months.

Due to lower court rulings, the mandate of the health worker is currently pending in 25 states that have challenged him. In other states, Washington, DC and U.S. territories, health workers must receive the first dose of the COVID-19 vaccine by Jan. 27 and the second on Feb. 28, unless they have a religious or medical exemption, Marrotta said.

The workplace rule requires companies to submit a compliance plan by Monday, with unvaccinated workers starting to wear a mask that day. The application of the rules begins on February 9.

Medicare and Medicaid money in the game

The Centers for Medicare and Medicaid Services said in November that they would require all healthcare facilities that receive Medicare or Medicaid payments to vaccinate their workers. The policy would cover more than 17 million health workers in 76,000 facilities.

The government said it has the legal authority to request vaccinations because it is necessary to protect the “health and safety” of patients – an argument he reiterated in the Supreme Court.

Judges Sonia Sotomayor, Elena Kagan and Stephen Breyer agreed that it was within the CMS’s authority to introduce such a request, equating it with the infection control measures the agency had already requested. Also, Sotomayor added, the federal government has the right to decide if 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 has no right to “command” private companies through their spending. “You can’t use money as a weapon to control these things,” said Gorsuch, who has repeatedly stated that he sees the rule as abolishing the rights of states.

Elizabeth Murrill, Louisiana’s deputy attorney general – who sued because she has COVID-19 – called the CMS rule “an unprecedented bureaucratic move of power”.

Murrill added: “This case is not about whether vaccines are effective, useful or a good idea. It is a question of whether this federal executive agency has the power to force millions of people working for or with Medicare or Medicaid providers to undergo invasive, irrevocable, forced treatment, vaccination against COVID. ”

Missouri Deputy Attorney General Jesus Armondo of Ossetia also argued that the measures were federal overruns and that only states have the power to prescribe vaccinations. The request will drive rural hospitals out of business because health workers are firing instead of being vaccinated, he said.

Ultimately, “local economies will be devastated,” Osete said.

But Judge Brett Kavanaugh wanted to know why hospitals did not join the lawsuit.

“Where do the regulated parties complain about the regulation?” said Kavanaugh. “The element is missing here.”

Sixteen medical societies have submitted one friendly submission arguing that vaccinating healthcare workers is key to curbing the spread of COVID-19 and protecting 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 – also said several health workers have resigned in the face of ongoing vaccination requests. At Indiana Health University, only 0.3% of employees resigned after vaccine a mandate has been established, they said.

Frank Trinity, chief legal officer of the American Medical School Association, told reporters before the hearing that only about 1% of hospital workers resigned because of their mandate. Meanwhile, some 5-7% of workers were ill coronavirus, said Janice Orlowski, MD, AAMC Chief Health Officer.

Will private individuals resign?

Private companies also argued that federal vaccination conditions would force workers to resign.

Twenty-six trade associations have asked the court to immediately stop enforcing OSHA’s emergency rule that employers with 100 or more workers either require all employees to be vaccinated or allow unvaccinated employees to take weekly negative coronavirus tests and wear face masks. business.

OSHA estimated that the mandate could encourage about 22 million Americans to get vaccinated and prevent 250,000 hospitalizations.

In their submission, the companies argued that OSHA did not have the authority to issue the rule and that it should have had a longer procedure for public comment. They also said companies would suffer irreparable damage as they would have to bear the cost of testing, which could be passed on to consumers or workers, who could then give up.

Roberts asked why OSHA would not have the authority to address what he called a “special problem in the workplace.” He said he believes the agency is working on “an effective way to solve the problem”, adding that “there is some urgent urgency”, given the current pandemic.

Scott Keller, attorney general of the National Federation of Independent Enterprises (NFIB), said OSHA is an “unprecedented” rule because the agency has never required vaccination before.

Keller also said the rule should be broken immediately. “As soon as companies have to announce their plans and this takes effect, workers will resign,” he said. “It will in itself be a permanent displacement of workers that will spread through the national economy,” Keller said.

Judge Kagan said she sees the workplace as an important area for the government to introduce measures to control the spread of COVID-19. And that it is uniquely risky because workers cannot control their exposure. “Where else do people have a higher risk than the workplace?” said Kagan.

Benjamin Michael Flowers, who debated on behalf of the state of Ohio (and who also responded because he has COVID-19), said he believes not all jobs are risky, and that with the Omicron variant the vaccine does not appear to be very effective in stopping the spread transmission. ”

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