On Friday, a majority of Supreme Court justices appeared willing to let the federal government’s Health Care Worker COVID-19 Vaccine AuthorizationEffective while the lower court continues to appeal.

But the justices seemed more skeptical of the Labor Department’s ability to require workers at largely non-healthcare businesses to get vaccinated or tested weekly, with Chief Justice John Roberts questioning whether the federal government was trying to bypass the powers of states and Congress to pass the requirement.

The Labor Department’s Occupational Safety and Health Administration will begin enforcing its own non-healthcare-specific rules on Monday, but won’t require employees to get vaccinated or tested weekly until Feb. 9. The tight deadline means the Supreme Court could issue its ruling as soon as Friday night.

During oral arguments, Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor expressed interest in having CMS carry out its mandate. The liberal justices specifically challenged the idea that CMS cannot require vaccines to keep Medicare and Medicaid patients safe, and questioned how the policy differs from many other health care regulations proposed by the agency.

“One thing you can’t do is kill your patients … I mean, it seems like a very basic infection prevention measure,” Kagan said.

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The federal government believes that CMS must protect the health of beneficiaries, and one way to do this is to limit payments to providers who meet certain criteria. Vaccinations should fall into this category, the government said.

But states challenging the authorization argue that CMS itself does not have the authority to make such sweeping demands. The mandate is currently stuck in 25 states pending appeals. The largely Republican-led states have stressed that the mandate could lead to staffing shortages, especially in rural areas.

Healthcare facilities that have implemented their own vaccine requirements Haven’t seen a massive exodus of employees so far.

Roberts also said he may support getting the CMS mandate to go into effect, especially when compared to the federal government’s other COVID-19 vaccination policies. For example, health care regulators appear to have more ties to regulating health threats than labor regulators, he said.

Judge Amy Coney Barrett said she thought CMS may have the authority to enforce vaccine authorizations in some facilities, such as long-term care, but not in others.

CMS attorney, Deputy Attorney General Brian Fletcher, argued that the agency could enforce infection control protocols in different care settings. If the court vetoes the authorization, it should still consider allowing the requirement in certain care settings, he said.

But that’s unlikely, according to Fisher Phillips partner A. Kevin Troutman, who closely follows the case. The pressure to issue a ruling quickly makes it unlikely the court will make the order apply to some facility types and not others, but Barrett’s question is valid, he said.

CMS is tasked with linking vaccination requirements to Medicare and Medicaid funding, which make up a significant portion of a healthcare facility’s average operating budget. The conservative-leaning judge questioned whether CMS was effectively trying to use this financial connection to make employment decisions. The agency may not make staffing decisions for healthcare facilities.

Ultimately, the case will depend on whether the authorization caused irreparable harm to the health care provider and their employees. Justice Brett Kavanaugh noted that the states referred the authority to the Supreme Court, not the health care workers under the authority.

although not every healthcare providerAgreeing to the federal mandate, many trade groups such as the American Medical Association and the Association of American Medical Colleges do support the policy, and individual states and health systems set their own vaccine requirements.

The Supreme Court also heard arguments Friday over the Labor Department’s Occupational Health and Safety Administration requiring employees at companies with 100 or more employees to be fully vaccinated against COVID-19 or tested weekly.

The justices seemed less convinced that OSHA had the authority to make such a sweeping request without explicit direction from Congress, although the more liberal judges again said they believed OSHA acted in the public interest.

“It seems to me that the administration is trying to work on the waterfront, and it’s just doing it on an agency-by-agency basis,” Roberts told U.S. Attorney General Elizabeth Prelog.