Montana files third challenge to federal vaccine mandates

By Mara Silvers Montana Free Press

This story originally ran on MontanaFreePress.org.

Montana on Nov. 15 filed its third lawsuit against the Biden administration’s federal vaccine requirements, joining several other Republican-led states in challenging the White House’s efforts to increase protection against COVID-19. Even as the virus continues to spread in Montana, Attorney General Austin Knudsen has called Biden’s strategy an “unconstitutional power grab and intrusion into Montanans’ lives.”

Here’s a breakdown of what the Biden administration is seeking to do, how Montanans could be impacted, and where the lawsuits currently stand.

VACCINES OR REGULAR TESTING FOR LARGE BUSINESSES 

Through an emergency change to federal safety standards enforced by the Occupational Safety and Health Administration, Biden’s Department of Labor is seeking to require employee vaccination or regular testing of employees of companies with 100 or more workers. 

The rule sets a Jan. 4 deadline for employers to begin enacting the new policy, including maintaining a roster of employee vaccination status and requiring unvaccinated employees to wear masks. Employers, including approximately 400 in Montana, could face fines of up to $14,000 per infraction.

Several states and businesses, including Montana, sued to block the proposed rule in early November. That same week, a federal appeals court temporarily stayed the OSHA rule, saying petitioners in one suit had demonstrated “grave statutory and constitutional issues” with the government’s mandate. The court expanded on its decision in a longer ruling on Friday, Nov. 12. 

As of Nov. 16, Biden’s Justice Department has not appealed the decision, but has pledged to “vigorously defend” the emergency rule.

REQUIRED VACCINES FOR MEDICAID AND MEDICARE FACILITIES

On Nov. 5, the Biden administration implemented a new employee vaccine requirement for health care facilities that receive funding from Medicaid and Medicare in an effort to address “the risk of unvaccinated health care staff to patient safety,” Centers for Medicare and Medicaid (CMS) Administrator Chiquita Brooks-LaSure said in a written statement. 

The CMS rule states that employees of hospitals, psychiatric treatment facilities, ambulatory surgical centers and many other types of facilities must receive at least the first shot of a vaccination by Dec. 6. Weekly testing in lieu of vaccination is not an option. Employees are not subject to the vaccine requirement if they work 100 percent remotely.  

Within days, a cohort of states filed a lawsuit to block the CMS rule in the eastern district of Missouri. On Nov. 15, 11 other states, including Montana, filed a separate challenge in the western district of Louisiana.

In a press release announcing the latter lawsuit, Knudsen said the rule would force Montana’s health care workforce to buckle if employees choose to leave their jobs instead of getting vaccinated.

“If unvaccinated workers quit or are fired, that will compel those hospitals to close certain divisions, cancel certain services, or shutter altogether,” the lawsuit states.

The Biden administration has not yet filed a reply in court. 

VACCINATIONS FOR NEW AND RENEWED FEDERAL CONTRACTORS

The White House has also imposed vaccine requirements on federal contractors. While those contractors have some leeway when it comes to enforcing the new rules with their employees, the administration’s Safer Federal Workforce guidelines have recommended that employers encourage compliance, “including through a limited period of counseling and education, followed by additional disciplinary measures if necessary.” 

An employee’s termination for not complying with vaccination would occur “only after continued noncompliance,” the guidelines state.

In announcing Montana’s legal challenge to that rule, Knudsen blasted the administration for “gross overreach” into the lives of Montana residents.

“Workers in our state don’t lose their rights just because their company happens to do some work for the federal government,” Knudsen said.

The Oct. 29 lawsuit that Montana joined is currently proceeding in the eastern district of Missouri. 

Some legal observers have suggested that, compared to the administration’s requirement for large employers, the mandate for federal contractors may be more difficult for plaintiffs to successfully challenge in court.

Mara covers Montana’s social welfare, criminal justice and legal systems. She also tracks policy and social issues that affect LGBTQ+ people. Prior to joining Montana Free Press, Mara worked at Slate and WNYC, where she focused on radio and podcasts. She got her start in audio journalism as an intern at Montana Public Radio. Contact Mara at msilvers@montanafreepress.org, 406-465-3386 ext. 3, and follow her on Twitter.