High court blocks vaccine mandate at major workplaces, allows it at health-care sites that get federal money; nursing homes worry

By Melissa Patrick
Kentucky Health News

The U.S. Supreme Court has blocked enforcement of President Biden's requirement that workers for larger employers get vaccinated against Covid-19 or submit to weekly testing, but it also ruled that a vaccine requirement for health-care workers in facilities receiving federal money could proceed. 

The court ruled 5-4 that vaccination in facilities getting Medicare and Medicaid funding could be required, stating the secretary of Health and Human Services had not exceeded his statutory authority in doing so. 

Betsy Johnson, president of Kentucky Association of Health Care Facilities, the main long-term-care lobby, said she was not surprised by the ruling, but voiced concern that it will worsen an already fragile workforce situation. 

"Although our association fully supports employer Covid-19 vaccine mandates and encourages all our long-term care workers to get vaccinated against Covid-19, we believe this governmental mandate will further exacerbate the workforce issues that skilled nursing facilities are experiencing in Kentucky," Johnson said.

"A little over 15 percent of our skilled nursing facility workforce has declined to take the vaccine and only 23% of our workforce has currently received the booster. Although we have made great strides in our staff vaccination rates, we believe that we will lose staff to non-health-care employers that are not subject to a government Covid-19 vaccine mandate."

Most Kentucky hospital systems already require their employees to be vaccinated for the disease.

The Kentucky Hospital Association said it supports the federal requirement, but was unable to say what percentage of hospital employees have received a Covid-19 vaccine. 

KHA spokeswoman Ginger Dreyer said in an e-mail, "Vaccination against Covid-19 is the best tool to mitigate spread of Covid-19 and to prevent against serious disease and hospitalization. Since the vaccines became available, KHA has supported hospitals and health systems that chose to amend their existing vaccine policies to require Covid-19 vaccines for their health care employees. Restoring, preserving and protecting the health of patients is the highest priority for Kentucky’s hospitals." 

Attorney General Daniel Cameron, who joined the lawsuits against vaccine mandates for health-care facilities and large employers, said he was disappointed in the decision. "Legal challenges to the mandates for Head Start programs and federal contractors remain pending in court, and we are committed to doing what is necessary to see them through," Cameron said in a news release.

By 6-3, the court blocked the Occupational Safety and Health Administration rule to require vaccinations or weekly testing for businesses and organizations with more than 100 employees.

“OSHA has never before imposed such a mandate. Nor has Congress,” the court's conservatives wrote in an unsigned opinion. “Indeed, although Congress has enacted significant legislation addressing the Covid-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

Lower courts may still hear legal arguments about the mandate, which would apply to about 84 million workers. The health rule applies to about 10.4 million.

 

Cameron called the blocking of the employer mandate “a victory for hundreds of thousands of large employers and their employees in Kentucky and across the nation. These businesses feared the loss of large numbers of employees or having to permanently close their doors due to the Biden administration’s unlawful and overbroad vaccine mandate.”

Biden said it is now up to states and individual employers to make such requirements. 

“The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy,” Biden said. “I call on business leaders to immediately join those who have already stepped up — including one-third of Fortune 100 companies — and institute vaccination requirements to protect their workers, customers, and communities.”