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The U.S. Supreme Court appeared to agree with the federal government on Friday that it is within its right to require healthcare facilities accepting Medicare or Medicaid dollars to vaccinate workers for COVID-19, but the judges appeared more skeptical that the government can order large corporations to require employees to be vaccinated or tested on a regular basis.

Judges heard nearly 3 hours of arguments on Friday on two cases that will determine whether federal requirements can be maintained as corporations and 25 states challenge the legality of the mandate in lower courts.

The court could make a decision this weekend.

Sean Marotta, an appeals court and supreme court attorney who is the American Hospital Association’s external attorney, said on Twitter that he expected judges to block corporate vaccination or testing because it was “too broad and not clearly authorized” is.

Regarding vaccination requirements for health workers, “It may be tight, but I predict there will be at least five votes to keep the mandate full and maybe six votes to keep it in large parts,” he tweeted.

Jonathan Turley, a more conservative attorney at George Washington University Law School, agreed that judges could side with the Biden administration on the health worker’s mandate.

Presiding Judge John Roberts “expresses skepticism that dealing with an infectious disease in this way is not a government responsibility,” Turley tweeted during the arguments. He also noted that “Conservative judges’ questions about the health mandate differ significantly from those about workplace regulations”.

The requirements – for both healthcare facilities and employers – would only apply for 6 months.

The health worker mandate is currently on hold in 25 states that have contested it, due to rulings from lower courts. In the other 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, according to Marotta, unless they have a religious or medical exception .

The workplace rule requires companies to submit a compliance plan by Monday and unvaccinated workers start wearing masks on that day. Enforcement of the rule begins on February 9th.

Medicare and Medicaid money at stake

The Centers for Medicare and Medicaid Services (CMS) announced in November that all healthcare facilities that receive Medicare or Medicaid payments must vaccinate their employees. The directive would cover more than 17 million health workers in 76,000 facilities.

The government said it had the legal right to require vaccinations because it was necessary to protect the “health and safety” of patients – an argument it repeated in the Supreme Court.

Judges Sonia Sotomayor, Elena Kagan and Stephen Breyer agreed that it was the responsibility of CMS to introduce such a requirement, which was to be equated with the infection control measures already required by the authority. In addition, according to Sotomayor, the federal government has the right to decide whether to pay for certain services. The law allows the federal government to say, “If you want my money, your facility must,” Sotomayor said.

But Judge Neil Gorsuch said the government did not have the right to “command” private companies through their spending. “You can’t use money as a weapon to control these things,” said Gorsuch, who repeatedly pointed out that he saw the rule as the abolition of state rights.

Elizabeth Murrill, Louisiana Assistant Attorney General – who called the court over COVID-19 – called the CMS rule “a bureaucratic move that is unprecedented.”

Murrill added, “This case isn’t about whether vaccines are effective, useful, or a good idea. It’s about whether this federal agency has the power to get millions of people who work for or with a Medicare or Medicaid provider to receive invasive, irrevocable, coercive medical treatment, a COVID vaccination. “

Missouri Assistant Attorney General Jesus Armando Osete also argued that the measures were in breach of the federal government and that only states have authority to mandate vaccinations. The requirement will put rural hospitals out of business as healthcare workers are more likely to quit than to be vaccinated, he said.

Ultimately, it will “destroy the local economy,” said Osete.

But Judge Brett Kavanaugh wanted to know why hospitals had not joined the lawsuit.

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

Sixteen medical societies filed a lawsuit arguing that vaccination of health workers is essential to contain the spread of COVID-19 and protect the health of workers and patients.

The 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 few health workers have quit in the face of ongoing vaccination requirements. At Indiana University Health, just 0.3% of employees quit after the vaccination mandate was introduced, they said.

Frank Trinity, chief legal officer of the Association of American Medical Colleges (AAMC), told reporters prior to the hearing that only about 1% of hospital workers have resigned in the face of mandates. Meanwhile, around 5 to 7% of workers have contracted the coronavirus, said Janis Orlowski, MD, AAMC’s chief healthcare officer.

Will private employees quit?

Private companies also argued that the federal vaccination requirement would induce workers to quit the business.

Twenty-six professional associations petitioned the court to immediately end enforcement of the Occupational Safety and Health Administration (OSHA) emergency rule, which requires employers with 100 or more workers to either require all workers to be vaccinated or to allow unvaccinated workers to have negative coronavirus tests weekly and wear face covers at work.

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

The companies argued in their filing that OSHA had no authority to make the rule and that there should have been a longer process for public comment. They also said that companies would suffer irreparable damage if they had to pay the testing costs, which could be passed on to consumers or workers who may then quit.

Roberts asked why OSHA did not have the authority to deal with what he called “a particular workplace problem.” He said he saw the agency as “an effective way to address the problem,” adding that there was “an urgent priority” given the ongoing pandemic.

Scott Keller, senior attorney for the National Federation of Independent Business, said the OSHA rule was “unprecedented” as the agency had never requested vaccination before.

Keller also said the rule should stop immediately. “As soon as companies have to publish their plans and this goes into effect, workers will quit,” he said. “That itself will be a permanent displacement of workers that will spread through the economy,” said Keller.

Judge Kagan said she sees the workplace as an essential area for the government to take action to control the spread of COVID-19. And that it is uniquely risky because workers cannot control their exposure. “Where else are people at greater risk than in the workplace?” said Kagan.

Benjamin Michael Flowers, who argued on behalf of Ohio State (and also called because he has COVID-19), said he believes that not all jobs are at risk, and that with the Omicron variant, “vaccines are not so.” seem to be”. very effective in stopping the spread of transmission. “

Alicia Ault is a freelance journalist based in Lutherville, Maryland whose work has appeared in publications including JAMA, Smithsonian.com, the New York Times, and the Washington Post. You can find her on Twitter @aliciaault.

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