Concerns Linger Over Vaccine Mandates, Despite Supreme Court Rulings

Sarasota, FL (WorkersCompensation.com) – The week following the U.S. Supreme Court’s decisions regarding coronavirus vaccine mandates has left many employers assessing the impact – especially those in the healthcare industry. 

Larger employers – those with at least 100 employees – will not be under a mandate to require their workers to either get vaccinated or under weekly testing; at least, not under OSHA. 

For those in the healthcare industry that receive Medicare or Medicaid funding, employers have decisions to make; such as how they will address requests for medical or religious exemptions, and how they will accommodate workers who qualify for them. 

While the rulings clarified the effect – or lock of – vaccine mandates, organizations are expressing a number of concerns and seeking answers to comply with the rules while keeping their organizations functioning. 

Rulings

An Emergency Temporary Standard that would have impacted non-healthcare employers was struck down on a vote of 6 – 3 by justices who felt the agency went too far in setting the rule. In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, the justices ruled that OSHA was restricted from mandating the vaccines. 

While many employers may be celebrating the ruling for non-healthcare organizations, their reactions may be premature. For one thing, employers need to ensure they still follow other rules that may apply.

“The United States Supreme Court’s ruling is a welcome relief to employers that would have otherwise been covered under the Federal OSHA vaccine mandate,” said Lonnie D. Giamela, a partner at Fisher & Phillips LLP. “California employers, however, must not confuse this ruling with any type of relaxation on the stringent requirements under state Cal-OSHA ETS regarding required policies and training as well as isolation, quarantine and exclusion rules for those that test positive and close contacts.” 

Also, the ruling may not necessarily be the best result for organizations in terms of keeping them and their workers safe. 

“The mandate was the best tool we have to defeat the pandemic,” argued Joseph Paduda, Principal of Health Strategy Associates. “With the Court's rejection of the mandate the real issue is the impact; the decision will prolong the pandemic; thousands more needless, preventable deaths will occur; businesses of all sizes will suffer; and we’re at much greater risk for new and more deadly variants.”

Some workers compensation practitioners questioned how the justices could issue two seemingly conflicting decisions on the same day. In its ruling on Biden v. Missouri, the justice es said the healthcare mandate issued by the secretary of Health and Human Services “falls within the authorities that Congress has conferred upon him.”

One workers’ compensation attorney opined that the high court recognized the special relationship the healthcare community plays in the front lines of the pandemic, while the OSHA regulations “were a bridge too far” for non-healthcare workers.

“The SCOTUS decision reflects the intersection of politics and the law during the fluidity of a pandemic,” said Stuart Colburn, a shareholder at Downs & Stafford, P.C. “This decision mirrors the current political climate. A thought experiment might illustrate the fluidity: if the hypothetical variant combined the basic reproduction factor (R naught or R0) of influenza or chicken pox with the fatality rate of Ebola, what legal test and balance of factors would SCOTUS assess the same regulations? Hopefully, we will never know. Hopefully, the Covid will evolve into an endemic disease much like the 1918 Influenza is with us today as the seasonal flu.”

Healthcare Mandate

Many employers in the healthcare industry are readying for implementation of the requirement for facilities and workers that receive Medicare and/or Medicaid funding to require vaccinations of all employees except those provided exemptions. Twenty-five states, the District of Columbia and U.S. territories that did not challenge the mandate have until Feb. 28 to comply, while the 24 states included in the lawsuit have until March 15 – except Texas which is still under a preliminary injunction.  

A big question facing affected organizations is how to handle requests for, and accommodations for those exempted from the mandate. Different organizations grant and deny them differently and once granted, employers must accommodate these exemptions. As with paid employee leave, employers face a patchwork of vaccine mandates.”  

Another issue for some healthcare facilities is conflicting state rules. 

In response to the Supreme Court’s ruling Florida Gov. Ron DeSantis called the policy “insane,” and later said that the state will reject Federal mandates “which are rooted in political, not medical science.” 

Many states have mandated vaccines for healthcare workers. But in at least six – Texas, Montana, Arkansas, Indiana, Tennessee and George – there are bans that prohibit some employers from requiring vaccines. Still others have exempted healthcare organizations from bans on vaccine requirements. 

In addition to conflicting mandates, some healthcare employers are concerned about the prospect of increased staff shortages – especially in rural areas. Many facilities are grappling with how to proceed. 

"We respect the ruling of the U.S. Supreme Court but remain concerned that the repercussions of the vaccine mandate among health care workers will be devastating to an already decimated long term care workforce,” said Mark Parkinson, president and CEO of the American Health Care Association. “When we are in the midst of another COVID surge, caregivers in vaccine hesitant communities may walk off the job because of this policy, further threatening access to care for thousands of our nation's seniors.” 

Others said they will abide by the ruling. 

“… in accordance with this federal mandate, we are requiring all of our employees and those who provide services with our facilities in those states to receive their first dose of an mRNA vaccine or their one-dose Johnson & Johnson vaccine by January 27, 2022 and the second dose by February 28, 2022,” the Cleveland Clinic said in a statement. “Those who do not receive their vaccinations and who do not have an approved exemption will be placed on an unpaid leave of absence.” The statement followed the facility’s announcement in December that it would pause implementation of its vaccination policy. 

Still others eagerly welcomed the ruling. “At a time when we’re closing in on 850,000 Americans having died in the worst global pandemic in a century, and when infections and hospitalizations are continuing to soar, it is the obligation of our public agencies to require and enforce essential public safety measures to protect the lives and health of all American workers,” said Zenei Triunfo-Cortez, president of National Nurses United. The court order “should be a signal to the Department of Labor and Occupational Safety and Health Administration to take the next necessary step — extending the Emergency Temporary Standard (ETS) issued last June until adopting a permanent standard based on it for health care workplaces.” 

One workers’ compensation practitioner questioned whether the vaccine mandate has outlived its usefulness – at least in theory. “Those that have not yet decided to be vaccinated aren't going to be convinced by the heavy hand of government, thereby exacerbating the healthcare staffing shortage already in place,” said Mark Pew, the RX Professor. “Similar to the incomprehensible lack of foresight last year on testing capabilities, government is often late with solutions. Granted, there will likely be more variants in the future and they may look more like Delta than Omicron, but it's worth asking if a vaccine mandate is the ‘buggy whip’ of COVID.”

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