DOJ Asks Supreme Court to Lift Rulings Blocking Mandate for Health Care Workers

The Department of Justice (DOJ) has formally requested that the United States Supreme Court lift lower court orders that have halted the enforcement of the Biden administration’s requirements for certain health care workers to get vaccinated.

The White House rules require workers in health care facilities that receive Medicare or Medicaid funding to be vaccinated for protection against coronavirus. The mandate for health care workers was made in conjunction with a similar rule for workers at companies with 100 employees or more which required employees to either get vaccinated for COVID-19 or test weekly to ensure they weren’t spreading the virus. That rule, too, is being blocked by some lower courts.

Earlier this week, the U.S. 5th Circuit Court of Appeals lifted a nationwide block of the mandate on health care workers that was made previously by a federal judge but kept it in place for the 14 states that were part of the original lawsuit. Separately, the 8th Circuit Court of Appeals has kept in place another block of the health care mandate that affects 10 other states. The 11th Circuit Court of Appeals, meanwhile, has ruled that the Biden administration had the authority to issue the mandate.

On Thursday, Solicitor General Elizabeth Prelogar asked for the court orders blocking implementation of the rule to be put on hold while the appeals process continues, citing the ongoing coronavirus pandemic and its death toll.

Currently, health officials are reporting over 1,280 individuals are dying from COVID-19 each day on average across the U.S., an increase of 23 percent compared to two weeks ago. Ensuring that the vaccine rule for health care workers remains in place, Prelogar said in her filing, would “save hundreds or even thousands of lives each month” while the appeals process goes on.

Prelogar also maintained in her brief to the Court that the mandate, officially issued by Department of Health and Human Services Secretary Xavier Becerra, was necessary to protect from further spread of the virus.

“The Secretary of Health and Human Services exercised his express statutory authority to protect the health and safety of Medicare and Medicaid patients by requiring healthcare facilities that choose to participate in those programs to ensure that their staff are vaccinated,” Prelogar said.

The Supreme Court has indicated in the past that it is more inclined to let vaccine mandates stand than to rule against them, at least at the local and state levels.

It rejected a challenge to New York’s state mandate that also required health care workers to get vaccinated. That mandate is even more restrictive and does not carve out exceptions for religious objectors, while the federal rule does. The High Court also refused to temporarily block a mandate in Maine back in October in spite of the fact that the rule in the state would be implemented before appeals could be heard on it.

How the Court ruled on those states’ actions, however, might not be how it rules on the federal mandate for health care workers, should the lawsuits continue to make their way through the appellate process. Critics contend that the federal mandate goes beyond what is statutorily allowed.

According to a fact sheet from the White House, the mandate on health care workers to get the vaccine would apply to 17 million workers at around 76,000 facilities across the U.S. Those workers would have to be fully vaccinated for protection against COVID-19 by January 4.

Most health care workers are already vaccinated. According to research from the Centers for Disease Control and Prevention (CDC), approximately 30 percent of health care workers still need their shots, although that number may have decreased since it was published in November, due in part to the new omicron variant of the virus as well as the deadline to get fully vaccinated fast approaching.