Case closed on Biden administration’s employer vaccination mandate

OSHA’s vaccine-or-test standard was struck down by the Supreme Court, but the CMS vaccination mandate for health care workers stands.

By Kacey Larsen      
Supreme Court struck down vaccination mandate.

The U.S. Supreme Court split the difference on the two vaccination mandate cases before the court. The Occupational Safety and Health Administrations (OSHA) emergency temporary standard to vaccinate-or-test for employers with over 100 employees has been struck down, but the Centers for Medicare and Medicaid Services (CMS) vaccination mandate for certain employees at hospitals, nursing homes and other health care providers that receive federal funds was upheld.

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As reported by NPR, the court ruled 6 to 3, along ideological lines, against the vaccine-or-test regulation. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the majority said in an unsigned opinion. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

In the CMS case, the court voted 5 to 4. A key difference the court said is the federal agency has long imposed detailed regulations as a condition for health care providers receiving federal funds.

“The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the court wrote in a separate unsigned opinion. “It would be the very opposite…for a facility that is supposed to make people well to make them sick with COVID-19,” the majority said, noting that in many facilities without a vaccine mandate, “35% or more of staff remain unvaccinated.”

What happens next?

President Biden issued a statement expressing both praise and criticism of the ruling, but also gave an indication of the next phase. CNN covered Biden’s statement: “It is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”

CMS’ vaccination mandate—previously in place for providers in 25 states, territories and Washington D.C., where a preliminary injunction was lifted—will now extend to health care providers in an additional 24 states, covering approximately 10.4 million health care workers at 76,000 medical facilities. A statement from CMS Administrator Chiquita Brookers-LaSure includes a note that those newly covered by the Supreme Court’s decision will need to “establish plans and procedures to ensure their staff are vaccinated and to have their employees receive at least the first dose of a COVID-19 vaccine.”

Meanwhile as reported by The National Law Review, the government’s new requirements that “group health plans and issuers are required to cover over-the-counter (OTC) at-home COVID-19 tests without participant cost-sharing, preauthorization or medical management, even if no health care provider was involved in ordering the test” officially goes into effect Jan. 15. However, the policy from the Departments of Labor, Treasury and Health and Human Services allows group health plans and issuers to choose whether to offer direct coverage for the OTC tests or have a covered individual pay at time of purchase and submit a reimbursement request.

Up to eight home COVID-19 tests per month will be covered by private health insurers for each individual on the plan. PCR and rapid tests ordered or administered by a health provider will continue as fully covered by insurance with no limits. This policy goes into effect as there is a shortage of OTC tests across the U.S., plus private insurers were given four days’ notice by the Biden administration to carry out the order. In a statement to ABC News, Matt Eyles, president of America’s Health Insurance Plans, said, “Health insurance providers will work as quickly as possible to implement this guidance in ways that limit consumer confusion and challenges. While there will likely be some hiccups in early days, we will work with the administration to swiftly address issues as they arise.”

The past week has answered some questions for employers but raised many others. Having a vaccine-or-test policy is back, mostly, in employers’ hands unless a city or state has a mandate, and OTC at-home tests are supposedly ramping up in both coverage and availability. What questions are top of mind for you, readers, around all of this? Let us know by emailing me at kaceyl@ragan.com.