The U.S. Supreme Court. (Photo by Mike Kline [notkalvin])
In the wake of Thursday’s U.S. Supreme Court ruling that reinstated a stay against the Occupational Safety and Health Administration’s COVID-19 vaccination-and-testing mandate for employers with 100 or more workers, senior living association leaders said that the industry is doing a good job of increasing staff vaccination rates and promised to continue to encourage providers to push vaccinations to protect their communities.
The High Court ruled 6-3 against letting the OSHA vaccination-or-testing mandate for larger private employers continue in effect while the case remains under review in the 6th Circuit Court of Appeals. The rule ultimately could affect 84 million workers at 1.8 million workplaces — about two-thirds of the private workforce.
“The mandate could eventually come before the Supreme Court again, but today’s decision indicates that the Court would likely rule against the [emergency temporary standard] again should that happen,” Argentum noted in a message posted online.
Labor Secretary Marty Walsh said in a statement issued after the ruling, however, that “[r]egardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.” Walsh called Thursday’s ruling “a major setback to the health and safety of workers across the country.”
The court also lifted two injunctions blocking a Centers for Medicare & Medicaid Services rule covering more than 10.4 million healthcare workers at 76,000 federally funded healthcare facilities, including nursing homes. That mandate does not directly affect senior living communities.
CMS Administrator Chiquita Brooks-LaSure said the agency was “extremely pleased” by the court decision related to the healthcare worker mandate but was “disappointed” by the OSHA-related decision “and agrees with President Biden and Secretary Walsh: This is a major setback for the health and safety of workers across the country.”
National Center for Assisted Living Executive Director LaShuan Bethea hailed the Supreme Court’s decision to stay the vaccine mandate for larger employers, including many assisted living organizations.
“Assisted living communities and other residential care facilities are already uniquely focused on encouraging our frontline workers to get vaccinated and / or test regularly,” Bethea told McKnight’s Senior Living. “We remain committed to ongoing education about the importance of the vaccines in order to help protect those who live and work in assisted living.”
LeadingAge President and CEO Katie Smith Sloan called vaccines and boosters “the most powerful tools” in the battle against COVID-19. “They save lives,” she said.
And American Seniors Housing Association President and CEO David Schless told McKnight’s Senior Living: “While the OSHA rule would have made vaccination or testing a regulatory obligation, we are pleased that our members are acting responsibly to ensure the greatest number of staff are vaccinated in order to protect everyone in their communities. We know that many companies have already taken steps to mandate the vaccine, and for those who have not, they are achieving high levels of vaccination.”
Mandates can make it difficult for employers to find and retain qualified workers, Sloan and Schless acknowledged.
“The staffing shortage is real, and so the ability to work through these issues for some is best when left to the individual company,” Schless said.
Sloan said that LeadingAge, which represents the whole continuum of aging services providers, continues to encourage all members, regardless of care setting or community type, to ensure that staff members are vaccinated.
“Many LeadingAge providers implemented mandates months before the federal government announces its plans, and a recent poll of our mission-driven members reveals the vast majority are ready to move forward on the CMS healthcare worker mandates,” she said.
In July, LeadingAge, NCAL and the American Health Care Association, and AMDA-The Society for Post-Acute and Long-Term Care Medicine called for mandatory COVID vaccination or said they would support employers who issued such mandates. Argentum, ASHA and the American College of Health Care Administrators made similar announcements the next month. Several individual operators also issued their own vaccination requirements as a condition of employment.
Earlier this month, Argentum submitted comments regarding the CMS vaccination mandate for healthcare workers. While touting senior living’s vaccine uptake numbers, Argentum said it appreciated that the agency clarified that the mandate did not apply to assisted living communities because the agency has no regulatory authority over such settings.
Before Thursday’s Supreme Court decision, several states took matters into their own hands regarding vaccination mandates. Although Illinois moved forward with officially adopting the Biden administration’s vaccine mandate for private employers, Iowa, Arkansas and Virginia came out against such mandates.
As of Dec. 22, according to LeadingAge, 25 states had vaccination mandates, including 16 with language specific to healthcare settings or long-term care. Thirteen states had vaccine mandate bans in place at the time.