In a companion decision to its ruling on the OSHA vaccine mandate, the Supreme Court issued another stay – but this one on injunctions that had been issued enjoining regulations issued by the Secretary of Health and Human Services mandating that recipients of Medicare and Medicaid funding (e.g., hospitals, outpatient rehabilitation facilities, skilled nursing facilities, ambulatory surgical centers, etc.) ensure that their staff are vaccinated against COVID-19, unless they are exempt for religious or medical reasons. Those regulations have no testing option.

The Court found that the vaccine requirement fell squarely within the Secretary’s statutory authority ‘to promote and protect patient safety and health,” in that it would substantially reduce the likelihood that healthcare workers will contract the virus and pass it on to their vulnerable patients. The mandate was thus not unlike other requirements issued by the Secretary (e.g., training requirements, protective equipment, required practices and procedures, etc.), nor other vaccine mandates that states require of healthcare workers (e.g., hepatitis B, influenza, measles, etc.).

Justice Kavanaugh (joined by Roberts, Bryer, Sotomayor and Kagan) found that the action taken by the agency was within its power to address the challenges the global pandemic presented to facilities entrusted with the care of patients who were eligible to receive Medicare and Medicaid. As a result, the Court lifted the stay of the lower courts’ injunctions and reinstated the mandate (pending further litigation). In other words, unlike the OSHA mandate, the DHHS mandate WILL be in effect unless the case is decided otherwise by the Court of Appeals court or, ultimately, the Supreme Court.

If you have any questions about the DHSS vaccine mandate, the Supreme Court’s decision or other issues related to mandatory vaccination policies, feel free to contact Wessels Sherman attorney Alan Seneczko at alseneczko@wesselssherman.com or (262) 560-9696.