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COVID-19: Vaccine Mandate Ruling; Testing and Therapeutics Access

The U.S. Supreme Court in a 5–4 opinion allowed the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care workers to take effect but voted  6–3 to block the Occupational Safety and Health Administration (OSHA) vaccine-or-test mandate for businesses with 100 or more employees.

In its opinion on the CMS mandate, the Supreme Court held the agency acted reasonably and within its broad powers to condition facilities’ participation in the Medicare and Medicaid programs on requirements that “address the safe and effective provision of [health care].” The court acknowledged that, while the CMS mandate goes further than past actions, the agency never has had to confront an infection problem of this scale and scope.

Health care workers at facilities in the 24 states covered by this decision now must require their employees to be vaccinated or receive an exemption for religious or medical reasons. CMS on Jan. 14 issued guidance that requires employees to receive at least the first dose of a COVID-19 vaccine by Feb. 14 and complete the vaccine dose primary series by March 15.

This decision does not affect compliance in Texas, which had a standalone lawsuit not heard by the Supreme Court. Providers in the District of Columbia, the territories, and the 25 states where the preliminary injunction previously was lifted should follow the parameters outlined in CMS’ Dec. 28 guidance, which require employees at covered entities to receive the first dose of a COVID-19 vaccine by Jan. 27 and complete the primary series by Feb. 28.

In a statement, CMS Administrator Chiquita Brooks-LaSure said the court’s decision on the CMS mandate “will enable us to fully implement the rule … [w]e will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”

President Joe Biden also issued a statement affirming the administration’s commitment to enforcing the CMS mandate while voicing disappointment that the court chose to block the OSHA requirements for large employers. Biden noted, “It is now up to states and individual employers to determine whether to make their workplaces as safe as possible for employees” and called on business leaders to institute vaccination requirements despite the court’s decision.

CDC Updates Mask Guidance

The Centers for Disease Control and Prevention (CDC) updated its webpage on types of masks and respirators to include more information about the protection each device provides.

The guidance notes that respirators, including N95 and KN95 respirators, provide a higher level of protection than a cloth mask or procedural mask. The new guidance removes previous information that reflected concerns related to N95 respirator supply shortages. The guidance also delineates that specially labeled “surgical” N95 respirators, which provide additional protection against medical hazards such as blood spatter, should be reserved for health care providers.

Administration Announces Initiatives to Increase Testing

Free COVID-19 Rapid Tests Available

Beginning this week, individuals may request up to four at-home, rapid COVID-19 tests per residential address at no cost.

Tests are available at COVIDTests.gov and will ship via the U.S. Postal Service’s First Class Package Service within 12 days of ordering. Currently, 500 million tests are available, and the administration is working to secure 500 million additional tests.

To ensure tests reach the hardest-hit communities, the administration will prioritize processing orders to households experiencing the highest social vulnerability and those in communities that have experienced a disproportionate share of COVID-19 cases and deaths. Additionally, the administration plans to launch a free call line for those without access to the internet and to work with organizations that serve people of color, people with disabilities, and other high-risk communities to help people request tests.

COVID-19 Testing in Schools

The administration Jan. 12 announced initiatives to increase COVID-19 testing in schools, including:

  • distributing 5 million no-cost, rapid tests to K-12 schools each month;
  • providing 5 million additional no-cost, lab-based polymerase chain reaction tests to schools each month;
  • deploying federal surge testing units dedicated to serving schools;
  • connecting local school districts with COVID-19 testing providers to use American Rescue Plan Act funding for school testing programs; and
  • releasing additional CDC guidance on “test to stay” programs.

COVID-19 Therapeutics Update

WHO Recommends New Drugs to Treat COVID-19

The World Health Organization (WHO) Jan. 14 recommended two new drugs to treat COVID-19. WHO strongly recommended baricitinib administered with corticosteroids for patients with severe or critical COVID-19. A Janus kinase (JAK) inhibitor, baricitinib suppresses overstimulation of the immune system.

WHO also conditionally recommended the monoclonal antibody drug sotrovimab to treat mild or moderate COVID-19 in patients at high risk of hospitalization, including patients who are older, immunocompromised, unvaccinated, or diagnosed with underlying conditions like diabetes, hypertension, and obesity.

These two drugs are eligible for WHO Prequalification, which evaluates the quality, efficacy, and safety of priority health products to increase access in lower-income countries. WHO also issued a conditional recommendation against the use of uxolitinib and tofacitinib.

Administration Accelerates Access to Therapeutics

In a Jan. 12 briefing, White House Coronavirus Response Coordinator Jeffrey Zients shared several new administrative actions to increase access to COVID-19 therapeutics in the United States.

The administration has purchased 20 million treatment courses of Paxlovid, Pfizer’s COVID-19 antiviral pill, and will accelerate delivery of the first 10 million pills to June 2022. The administration also purchased 600,000 treatment courses of GlaxoSmithKline’s monoclonal antibody treatment and is ordering 500,000 doses of AstraZeneca’s preventive therapy for immunocompromised individuals.

Visit the America’s Essential Hospitals coronavirus resource page for more information about the pandemic.

Contact Senior Director of Policy Erin O’Malley at eomalley@essentialhospitals.org or 202.585.0127 with questions.

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About the Author

Emily Schweich is a senior communications associate for America's Essential Hospitals.

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