Health Care Worker COVID-19 Vaccine Mandate Before Supreme Court

Infection preventionists will be watching closely as the nation’s Top Court is expected to rule—perhaps within days—whether hospitals can mandate that their workers get the COVID-19 vaccine.

The constitutionality of mandates that most health care workers (HCWs) in the United States be vaccinated against COVID-19 looks like it will be put to the test this week by the US Supreme Court. In what amounts to blazing speed for the nation’s Top Court, the ruling might come down in days, after the justices just heard oral arguments on the matter last Friday.

The legality of HCW vaccine mandates, as well as the mandate that employers with at least 100 employees need to launch vaccine-or-testing requirements for employees today, came before the court on an emergency basis. Instead of reviewing briefs by the litigants, as is usual, the justices heard oral arguments. Justices expressed more skepticism about the employer mandate than they did the mandate concerning HCWs.

However, as Infection Control Today® (ICT®) has reported, the HCW vaccine mandate has faced some stiff opposition in some states. The mandate covers HCWs at facilities that treat patients who have Medicare or Medicaid coverage. The rule, which includes religious and health care exemptions, would affect about 76,000 health care facilities as well as home health care providers.

Infection preventionists (IPs) are often at the forefront of trying to encourage their fellow health care professionals who are vaccine hesitant to get the vaccine. Often, that entails IPs taking on the mountains of misinformation about COVID-19 and vaccines that have risen since the pandemic started in March 2020.

La’Titia Houston, MPH, BSN, RN, MT(AAB), CBSPD, CIC, is the senior infection preventionist at Parkland Health in Dallas, and is also a member of ICT®’s Editorial Advisory Board (EAB).

“If the Supreme Court pauses or shoots down the vaccine mandates for health care professionals, infection preventionists will continue as we have in 2020 and 2021, to remind staff to use the appropriate PPE [personal protective equipment], hand hygiene between each patient, and clean your environment,” Houston says. “This process has prevented many infections in the past, including during this pandemic.”

EAB member Linda Spaulding, RN-BC, CIC, CHEC, CHOP, says that “it’s going to be a sad day if the Supreme Court decides it’s OK for health care workers to care for patients if they have a communicable disease.”

That would break precedent, says Spaulding, since HCWs have never been allowed to work when infected with a communicable disease. “We took an oath to do no harm,” says Spaulding. “In not getting vaccinated there’s a potential that we will be doing harm.”

As it stands, HCWs must now be vaccinated against measles, mumps, rubella, varicella, and chickenpox before they can even go to school to obtain their medical degrees, says Spaulding.

“COVID-19 is no different,” says Spaulding. “If they say HCWs don’t have to be vaccinated, can we now challenge all immunization?”

Over 207 million Americans (62.5% of the population) are fully vaccinated, according to the Centers for Disease Control and Prevention. Over 75 million Americans (36.3%) have gotten booster shots.

As the Associated Press reports, Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett will most likely be the deciding votes, and they have been more receptive to letting states decide on employer vaccine mandates. Ten states have challenged the federal mandate.

About mandates for HCW, the three seemed more receptive. As the AP reports: “Kavanaugh said it was a ‘very unusual situation’ that hospitals and health care organizations affected by the regulation were ‘not here complaining’ about the rule but instead support it. ‘What are we to make of that?’ he asked.”