The U.S. Supreme Court on Friday heard oral arguments in lawsuits seeking to block two federal regulations that would require vaccination for COVID-19 among health care and other workers. Thus far, no decision has been announced on either of the rules issued by the U.S. Centers for Medicare & Medicaid Services (CMS) or the U.S. Occupational Safety and Health Administration. However, preliminary reports indicate that the high court may be more amenable to the CMS rule and less so when it comes to the OSHA rule.

OSHA and CMS announced the rules in November. The OSHA regulation applies to all employers with 100 or more employees and is not limited to health care companies, while the CMS mandate applies to all health care personnel that enter a care setting or come into contact with patients, families or caregivers. The CMS rule requires 100% compliance, and providers would be subject to monetary penalties, potential denials of payment or, as a last resort, termination of their participation in Medicare or Medicaid.

Businesses are expected to begin planning “in good faith” for the OSHA rule by this month and to be fully compliant by Feb. 9. Under the CMS mandate, staff members at hospice and home health agencies are required to receive one COVID-19 vaccine dose by Jan. 27 and to be fully vaccinated by Feb. 26.

The CMS mandate states that hospices must have a contingency plan to address workers who do not become vaccinated as required under the emergency regulation. The rule requires 100% compliance, and providers would be subject to monetary penalties, potential denials of payment or, as a last resort, termination of their participation in Medicare or Medicaid.

Justices seemed more receptive to the CMS mandate, while opposition from the court on the OHSA rule is likely. Supreme Court members expressed skepticism as to whether the federal agencies have the legal authority to enforce the vaccine mandate or require that workers undergo frequent COVID-19 testing to maintain employment should they be found exempt. Justices questioned whether a federal agency could issue such regulations without clear approval and authorization from Congress. Roughly 100 million people in the United States would likely be affected by the mandates if they were to be implemented.

At least 78.7% of those eligible in the United States for vaccination have received their first dose, according to the U.S. Centers for Disease Control and Prevention (CDC). COVID-19 has driven demand for hospice care, claiming nearly 830,000 lives nationwide since its onset, according to recent data from the CDC. These deaths have largely occurred among the unvaccinated, with concern growing as omicron and delta variants give rise to surges nationwide.

Currently, Justices Clarence Thomas, Amy Coney Barrett and Samuel Alito all indicated that the Biden administration’s OSHA rule is too broad and would pose risk to many workers, many of whom may be at a lessened risk of hospitalization or death if they contracted the virus. Some Justices appeared more receptive to the idea of a more pointed and specific rule, however.

“We know the best way to prevent spread is for people to get vaccinated,” said Justice Elena Kagan, according to a report from The New York Times.

The 6th Circuit Court of Appeals in mid December lifted a stay that had been placed on the OSHA rule, allowing it to push forward. Judges in Missouri and Louisiana both imposed preliminary injunctions on the rules, meaning that the agencies could not implement or enforce them until the courts made a final decision. An appeals court lifted the CMS injunction on the grounds that the district judge in Louisiana did not have authority to order a nationwide stay. It could only apply to the states that were plaintiffs in the suit.

Lawyers arguing against both mandates raised the issues of staffing and federal vs. state authority. The option to opt out of testing included in the CMS mandate roused particular concern on the plaintiff side, with lawyers arguing that it would leave thousands of health care workers unemployed and squeeze the labor market for providers, they said.

Business Insider this afternoon reported that both of the attorneys representing the plaintiff states have tested positive for COVID-19.

Vaccine mandates have been top of mind for hospice providers and others amid ongoing staffing shortages exacerbated by the pandemic. Hospice providers have furrowed brows over the potential loss in their employee ranks among unvaccinated staff.

A mandate would be an impetus to leaving a job for roughly 5% of unvaccinated adults who responded to a nationwide survey from the Kaiser Family Foundation. More than a third of these unvaccinated workers indicated that they would rather quit than comply.

The White House has indicated that it intends to defend the mandates at every stage of the judicial process.

*Additional reporting contributed by Andrew Donlan, reporter for Home Health Care News.