One word explains why the Supreme Court allowed the Center for Medicare and Medicaid Services to require the staff of twenty-one types of Medicare and Medicaid healthcare providers to be fully vaccinated (the “CMS Mandate“), while it stayed the OSHA vaccine-or-test mandate.
That word is
OSHA could not issue its mandate because Congress never expressly authorized it. Conversely, five Justices concluded that Congress had explicitly permitted the CMS Mandate.
The Secretary of Health and Human Services administers both Medicare and Medicaid. It says it right there in the statute that the Secretary has general authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”
“One such function—perhaps the most basic, given the Department’s core mission,” noted the Supreme Court, “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety…To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such’ requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.'”
Among other things, Congress has empowered HHS to require certain health providers to maintain and enforce an “infection prevention and control designed … to help prevent the development and transmission of communicable diseases and infections.” And the Secretary issued the CMS Mandate after finding that vaccination of healthcare workers against COVID-19 is necessary to protect folks that receive care at facilities that receive Medicare and Medicaid funding.
Undoubtedly, vaccines, testing, or some combination would help contain the spread of COVID-19 in private workplaces. But the difference is that Congress has never expressly empowered OSHA to impose those rules through an emergency temporary standard.
You see, this Supreme Court stuff isn’t that difficult to comprehend. In these two cases, the Court just played the hand Congress dealt it.
I’ve got more to say on these cases and President Biden’s Executive Order mandating COVID-19 vaccinations for employees of certain federal contractors. Plus, we haven’t touched on how employers should plan for the weeks and months ahead.
Let’s do that on Friday, January 21, 2022, at Noon ET on Zoom with some of my FisherBroyles employment law partners.
Here is the registration link, which includes a space for you to ask hypothetical COVID-19 questions for a friend. During the mailbag portion of The Employer Handbook Zoom Happy Hour, my colleagues and I will try to answer them without providing any specific legal advice or otherwise creating an attorney-client relationship.
Tell a friend and sign up fast! Space is limited. See you Friday.