In a 5-4 decision yesterday, the Supreme Court ruled that the federal government can enforce a final rule mandating health care workers to be vaccinated against COVID-19 while cases challenging the mandate are being appealed.  By temporarily lifting the lower courts’ injunctive stays, the Centers for Medicare & Medicaid Services (CMS) may proceed to enforce its vaccine mandate rule as a condition of participation, covering more than 17 million workers.

In November 2021, the Secretary of Health and Human Services announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff —unless exempt  for medical or religious reasons—are vaccinated against COVID-19.  Following the announcement, two U.S. District Courts (Eastern District of Missouri and Western District of Louisiana) enjoined enforcement of the rule.  Last week, the Supreme Court heard oral argument at length as the U.S. Government sought a stay of the lower courts’ injunctions pending appeals in the respective Circuits.

In reaching its decision, the Court determined that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid funds, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.  Indeed, the Court recognized that Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of health and safety of individuals who are furnished services.”  (citing 42 U.S.C. § 1395(e)(9)).  The Court’s ruling hinged, in part, on the unique nature of health care settings.  In particular, the Court noted that the rule was based on findings that vaccination of health care workers is “necessary for the health and safety of individuals to whom care and services are furnished” and on “data showing that the COVID-19 virus can be spread rapidly among health care workers and from them to patients, and that such spread is more likely when health care workers are unvaccinated.”   The Court further maintained that the CMS vaccine mandate falls “neatly” within the Secretary’s authority and, borrowing from Hippocrates’ Of The Epidemics, further held that “providers tak[ing] steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principal of the medical profession: first, do no harm.”  The Court further recognized that “[v]accination requirements are a common feature of the provision of healthcare in America: Health care workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps and rubella.”

The ruling means the CMS rule goes into effect broadly. For the time being, the Eastern District of Missouri’s November 29, 2021, order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the Eighth Circuit and the disposition of the Government’s petition for writ of certiorari (if sought).  The same is true for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunction, which also is stayed during the Government’s appeal in the Fifth Circuit and the disposition of the Government’s petition for writ of certiorari.  If a writ is denied, the respective stay is automatically terminated.  To the extent that a writ is granted, the Supreme Court’s order shall terminate upon its judgment on the respective appeal.  In the meantime, health care facilities in 15 categories subject to the rule will likely begin (or continue) implementing necessary measures to fall within compliance of the CMS mandate.