Nurse practitioner Tabe Mase gives U.S. President-elect Joe Biden a dose of a vaccine against the coronavirus disease (COVID-19) at ChristianaCare Christiana Hospital, in Newark, Delaware, U.S. December 21, 2020. Biden announced vaccination eligibility for school teachers this week. Credit: Leah Millis/REUTERS. May not be republished without license.

The vaccination plan President Joe Biden unveiled late last week, which requires businesses with more than 100 employees and organizations that receive Medicare and Medicaid reimbursement to ensure their employees are vaccinated, has many Montanans struggling to understand what compliance looks like for a directive that’s currently more a general initiative than an actionable plan.

In his Sept. 9 remarks about the new plan, Biden argued that the measure will help curb transmission of the more-infectious Delta variant of COVID-19, which has strained hospital systems in communities where the percentage of the population that’s been fully vaccinated languishes below the White House’s target vaccination rate.

Introducing the plan, Biden made a case that vaccine mandates are effective, that companies or states like Washington that require vaccination among employees see considerable increases in vaccination rates. When United Airlines announced its new requirement — the first major U.S. employer to do so — more than half of its unvaccinated employees got a shot, Biden said. Tyson Foods saw similar results, he said. 

To prod the more than 80 million vaccine-eligible but unvaccinated Americans to take the leap, Biden is using the federal government’s regulatory oversight via the Occupational Safety and Health Administration, or OSHA, and the government’s purse-string power to dispense funding for Medicare and Medicaid programs. He’s also requiring vaccinations for federal employees and contractors working for the federal government.

OSHA is developing a rule that will require all employers with 100 or more employees to “ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work,” according to the White House directive. The Emergency Temporary Standard the agency is drafting is expected to apply to 80 million workers across the private sector, but the rule itself is not expected for weeks.

WHO WILL BE IMPACTED?

According to a Montana Free Press analysis of 2019 U.S. Census Bureau labor data, there were 411 employers in Montana with more than 100 workers who would fall under the OSHA rule. Collectively, those employers had 99,564 Montanans on their payrolls.

Organizations in the health care and social assistance category accounted for the greatest number of employees in that data set, with more than 34,000 Montanas working for large employers in that field. Retail trade was next, with more than 14,000 employees working for businesses with more than 100 employees.

Construction, transportation and warehousing, administrative services, and businesses operating in the mining or oil and gas industries are also well represented among the state’s large employers. Each of those industry groups employs at least 2,000 Montanans expected to be subject to the OSHA rule. The census labor data does not account for agricultural workers, railroad employees and most government employees, so workers in those fields are not represented in that count.

“It’s unfortunate that disinformation campaigns have forced the president and employers to mandate what all Americans should already be doing: getting vaccinated so we can move past this pandemic and keep our communities safe.”

Montana Federation of Public Employees President amanda Curtis

The health care industry is another cornerstone of Biden’s new vaccination plan, and an important contributor to Montana’s economy. Hospitals, clinics and home health care agencies that accept Medicare or Medicaid reimbursement will be required to mandate employee vaccinations. 

“These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country,” according to the White House’s outline of the new plan. “This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.”

The part of Biden’s plan that applies to federal employees working under the executive branch and contractors working for the federal government is significantly more fleshed out than the components regarding the health care industry and the private sector. On Sept. 9, Biden issued an executive order directing the Safer Federal Workforce Taskforce to issue guidance on implementing the plan. That guidance is expected this week.   

‘WE HAVE MORE QUESTIONS THAN WE HAVE ANSWERS’

Montana’s health care industry is in the position of trying to understand the logistical details of complying with the new directive while operating under immense strain as COVID-19 hospitalization rates among unvaccinated people continue to climb, creating acute staffing and space challenges. As of Monday, 351 Montanans are hospitalized with COVID.

Rich Rasmussen, president and CEO of the Montana Hospital Association, said he has lots of questions about how the plan will work in practice and is looking forward to seeing the specifics of the new OSHA rule as well as a forthcoming directive from the Centers for Medicare and Medicaid Services (CMS) pertaining to hospital reimbursement. 

“We have more questions than we have answers at this point,” he said.

Rasmussen wonders, for instance, if the part of the OSHA plan that will allow individuals to substitute weekly testing for vaccination will be extended to hospitals, since many of MHA’s member organizations employ more than 100 people. He said he also wonders if hospital employees can claim religious exemption from vaccination, and what will be expected of the companies that dispatch travel nurses and respiratory therapists to Montana hospitals to shore up staffing shortages.

Some of those details should be available within a month or two. The part of the plan that applies to health care workers is expected to be rolled out in an interim final rule issued by CMS in mid-to-late October. OSHA can skip its lengthy regular rule-making process with an emergency regulation that can last for six months, but first the agency has to write it. A former OSHA chief under the Obama administration told Bloomberg Law it will take at least several weeks and maybe a month or more to draft, review and publish the rule, depending on how far along the agency may already be in that process.

Meanwhile, Rasmussen said, the models he’s seen as of Sept. 6 indicate that the current surge in COVID cases that started in late July will continue to build for another four or five weeks, reaching a peak in mid-October, at which point the single-day record for new infections is expected to exceed the high-water mark set last November.

“As this vaccine initiative rolls forward, we’ll have to wait and see what type of impact it has on the overall growth of the disease,” Rasmussen said, adding that he doesn’t expect people who become vaccinated under the plan to achieve optimum protection until early 2022. He also said the Biden plan might have a greater impact on case counts in more populous counties than in rural areas where few, if any, businesses employ more than 100 people.

Jim Duncan, chief communication officer for Billings Clinic, the state’s largest health care provider with 4,800 employees, echoed Rasmussen’s anticipation for more details. 

“What the president announced is a plan, not a ruling,” Duncan said. “Until we know the specifics about the plan, we’re just complying with all applicable laws or rulings that are currently in play, as we always do.”

Duncan noted that the Billings Clinic is in the process of repurposing a new COVID-only unit to handle an anticipated surge of COVID-positive patients. He said 90-95% of the patients currently requiring hospitalization are unvaccinated, and that the hospital’s COVID patient census is approaching or exceeding last fall’s surge. The day after Biden released his plan, Billings Clinic had 105 COVID patients. Thirty-five of those patients were being treated in the intensive care unit, and 11 were on ventilators.

Both Duncan and Rasmussen urged unvaccinated people to get a shot to help ease the strain on health care workers.

“As an organization, Billings Clinic strongly urges everyone that can to get fully vaccinated,” Duncan said, adding that he has “incredible gratitude for our caregivers who are working around-the-clock to meet this need.”

Comments offered by union groups also touted the benefits of vaccination, but shied away from lauding or denouncing the mandate piece of Biden’s plan.

Montana Federation of Public Employees President Amanda Curtis said the mandate would affect union members who work for Head Start, a federally funded program under the U.S. Department of Health and Human Services that serves preschoolers and toddlers from low-income families.  

“It’s unfortunate that disinformation campaigns have forced the president and employers to mandate what all Americans should already be doing: getting vaccinated so we can move past this pandemic and keep our communities safe,” Curtis’ emailed statement said.

“We encourage everyone to get vaccinated in order to keep our communities safe and healthy and to protect front line workers,” said James Holbrook, executive secretary of the Montana AFL-CIO, in an emailed statement to MTFP. “Vaccinations are the best way to keep our hospitals from being overwhelmed and keep our economy moving forward.” 

The Montana AFL-CIO represents 50,000 Montana workers across 38 unions.

POLITICAL OPPOSITION AND POTENTIAL COURT CHALLENGES

The Biden plan generated immediate waves in the offices of U.S. senators and representatives and in Capitol buildings around the country.

Gov. Greg Gianforte described the mandate as “unlawful and un-American” in a Sept. 9 tweet. “We are committed to protecting Montanans’ freedoms and liberties against this gross federal overreach,” he wrote.

In a subsequent email to MTFP, Gianforte spokesperson Brooke Stroyke added that the governor “is exploring all options to protect against President Biden’s unprecedented vaccine mandate that undermines our personal freedoms and liberties and threatens our small businesses and the jobs they create.”

The new directive is expected to draw legal challenges once the relevant implementation rules have been formally issued. Republican governors and attorneys general have indicated they plan to take Biden to court over the plan. South Dakota Gov. Kristi Noem, Florida Attorney General Ashley Moody, Texas Attorney General Ken Paxton and Montana Attorney General Austin Knudsen have all indicated they plan to challenge the mandate.

““I’m exploring all possible legal approaches to protect the rights of Montana workers and businesses from President Biden’s unconstitutional mandate. Once his administration releases its rule, Montanans can expect to see me file a lawsuit to strike it down.”

Attorney General Austin Knudsen

“Just weeks ago, the Biden administration said issuing vaccine mandates is ‘not the role of the federal government.’ That remains true today,” Knudsen said in an emailed statement to MTFP. “I’m exploring all possible legal approaches to protect the rights of Montana workers and businesses from President Biden’s unconstitutional mandate. Once his administration releases its rule, Montanans can expect to see me file a lawsuit to strike it down.”

The White House directive clashes with House Bill 702, a measure passed by Montana lawmakers this spring that prohibits descrimination based upon a person’s vaccination status. Montana is the only state with such a measure in place, and its presence is likely to put some employers in a sticky situation relative to the new mandate.

The part of Biden’s plan requiring vaccinations for federal employees is probably the most clear-cut provision, legally, in that it preempts state laws like 702, according to an email from Anthony Johnstone, a law professor at the University of Montana’s Alexander Blewett III School of Law.  

Johnstone said HB 702 includes an “escape valve for long-term care facilities,” but other health care providers are in a more tenuous position: Comply with federal law and face liability under Montana’s non-discrimination law, or disregard the federal mandate at their financial peril.

“This is an area of law that is still developing,” he said

The part of Biden’s plan that applies to large employers largely rests on the authority vested in OSHA, Johstone said, and that, too, will likely be subject to legal interpretation. 

“The primary questions will be whether Congress’s authorization standards protecting occupational health and safety may be read to include vaccine and testing mandates, and whether such mandates fall within the emergency standards process the Biden Administration is intending to use.”

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Billings native Amanda Eggert covers environmental issues for MTFP. Amanda is a graduate of the University of Montana School of Journalism who has written for Outside magazine and Outlaw Partners. At Outlaw Partners she led coverage for the biweekly newspaper Explore Big Sky. Contact Amanda at aeggert@montanafreepress.org.