As the omicron coronavirus variant sweeps the nation, the Biden administration on Friday will ask the U.S. Supreme Court to greenlight sweeping vaccination requirements for health workers and employees of large private businesses in an urgent push to slow the spread of the virus.
The justices will hear oral arguments in a pair of highly-expedited cases that could determine whether millions of doctors, nurses and health facility staff must be vaccinated to stay on the job, and whether thousands of employers must soon implement vaccine-or-testing programs for their workforces.
More than 205 million Americans have been fully vaccinated against COVID-19, but tens of millions of others who are eligible have not received their first shot, according to the Centers for Disease Control and Prevention.
The rules are being challenged by separate coalitions of Republican-led states, industry trade groups, and religious organizations, which have accused the administration of an "unprecedented" and illegal power grab and infringement on individual rights.
The Department of Health and Human Services, which issued an emergency order in November requiring vaccinations of workers at facilities funded by Medicare and Medicaid, says the requirement “will save hundreds or even thousands of lives each month.”
"The Secretary found that unvaccinated staff at healthcare facilities pose a serious threat to the health and safety of patients because the virus that causes COVID-19 is highly transmissible and dangerous," HHS writes in court documents.
The nation is now averaging nearly 1,200 new deaths from the virus each day, up by about 10% in the last seven days but a notably lower rate than a year ago, according to CDC. Nearly 828,000 Americans have now been lost since the pandemic began.
Two federal appeals courts have upheld the health worker vaccine mandate citing federal law that allows HHS to impose conditions on facilities that receive federal funds; a third, the Eighth Circuit Court of Appeals, put the policy on hold.
"There's something called the power of the purse. If we see a hospital, or a nursing home [that] ... has some pathogen flying around that they're not dealing with. We have the ability to say, 'no, you can't allow a Medicare beneficiary to go there because they'll get sick or they'll risk getting sick,'" said Andy Slavitt, former acting administrator of the Center for Medicare and Medicaid Services during the Obama administration.
"We have to have those standards, and if you don't have those standards, think about the absurdity of being having been forced to spend taxpayer money to send people to unsafe situations," Slavitt said.
Twenty-two states already mandate COVID vaccinations for health care workers; 6 states explicitly ban them, according to the National Academy for State Health Policy.
Ten GOP-led states challenging the HHS mandate warn of "disastrous consequences" for health systems in rural areas with potential for widespread job losses over workers refusing to get the shot. “That’s quite the opposite of promoting patients’ ‘health and safety,’” they write in court documents.
The government argues vaccination will alleviate staff shortages by making it less likely health care workers contract the virus and get sidelined to recover.
In a separate case, the justices will also review an Occupational Safety and Health Administration (OSHA) rule requiring private American businesses with 100 or more employees verify vaccinations or conduct weekly testing to ensure workplace safety starting next month.
"Unvaccinated employees face a 'grave danger' from workplace exposure," the agency tells the court, quoting from the federal law it says authorizes the mandate. "The standard will save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of six month."
The U.S. continues to average more new cases per day than at any other point in the pandemic, federal data shows.
Opponents call the requirement hastily-conceived and an "historically unprecedented administrative command" not authorized by Congress. They also warn of “irreparable harm” to businesses still recovering from the pandemic.
"Small business owners depend on the freedom to make decisions for their businesses and are managing several challenges right now such as the labor shortage supply chain disruptions," said Karen Harned, executive director of the National Federation of Independent Business legal center, which is challenging the rule. "This mandate will only exacerbate those issues and make it harder for small business owners. OSHA does not have the emergency authority to regulate American workers under such a mandate."
They also argue that COVID-19 is not unique to the workplace or a "grave danger," despite more than 828,000 deaths attributed to the virus in the U.S.
"Why those are certainly tragic numbers is that a lot of that is preventable," said Dr. Georges Benjamin, executive director of the American Public Health Association. "They're some of the safest vaccines, and most studied vaccines that we have today, and they're highly effective."
The Sixth Circuit Court of Appeals in December upheld the OSHA rule as lawful. The Biden administration says employers must enforce masking among unvaccinated employees starting Jan. 10; proof of vaccination or testing compliance begins Feb. 9.
No state currently has a vaccination-or-test rule for private employers, but 18 states have set the policy for state employees, according to NASHP.
Americans remain divided on the vaccine-or-test policy for employers and mandate for health workers at Medicare or Medicaid facilities. Six in 10 said they support the administration’s rules in a CNN poll last month, a finding that mirrors a Gallup survey earlier in the fall.
The conservative-majority Supreme Court has rendered mixed decisions on contested government COVID policies over the past year. In August, a majority of justices effectively struck down the CDC’s eviction moratorium as exceeding agency authority; they also repeatedly ruled against state public health restrictions on religious gatherings and capacity limits at churches.
But the high court has also shown deference to state and federal officials trying to respond to the pandemic, rebuffing a challenge to New York State’s vaccination mandate for health workers and denying student and parent appeals of school and university vaccination or testing requirements.
The cases before the court Friday are technically emergency applications for immediate -- but temporary -- relief, not final judgements on the merits of the mandates, which are still being litigated in lower courts.
A decision from the justices is expected in days or weeks, rather than months, given the expedited nature of the case and the ongoing public health emergency.