Explainer: First vaccine mandate deadlines approaching

Posted at 10:28 AM, Nov 30, 2021

BILLINGS — Vaccine mandates continue to dominate national headlines and the information overload can make things confusing.

The first thing to know is there are essentially two different mandates to watch for — President Biden’s workplace mandate, which is being led by the Occupational Health and Safety Administration (OSHA), and a separate mandate for the nation’s healthcare workers, led by the Centers for Medicare and Medicaid Services (CMS).


This rule says all employees in offices of 100 workers or more need to be fully vaccinated or submit to weekly COVID testing by Jan. 4. In addition to testing, all unvaccinated workers will be required to wear masks in the workplace, starting Monday, Dec. 6.

However, right now the rule is on hold across the country, after the Fifth Circuit Court of Appeals granted a stay of the order. The Sixth Circuit Court was chosen by a random lottery to determine whether the stay order will be upheld, but don’t assume the courts will side the same way.

"The public should not be guessing, not even law professors should be guessing about what a court will do in these cases which raise novel questions," chuckled Anthony Johnstone, a Professor of Law at the University of Montana.

The Sixth Court says it will give its answer by Friday, Dec. 10, so the masking policy will likely be pushed back a few days at least. But it could be put in place anytime if the court rules in the mandate’s favor. Legal experts say no matter which way the court rules, the loser will almost assuredly challenge the ruling in the Supreme Court, but even so, a decision is expected by the new year.

"With more than a month before the timelines run out for full compliance with some of these mandates, the Supreme Court should have ample opportunity to weigh in at least preliminarily," Johnstone said.

CMS Rule

Under this rule, all healthcare workers in facilities public or private that receive funding from Medicare or Medicaid - which is most of them - must be fully vaccinated by Jan. 4 or have an approved exemption. But there is no weekly testing alternative.

The OSHA rule says workers only need to have had their full doses by Jan. 4. This rule says workers need to have had all doses two weeks before Jan. 4 for the vaccine to take full effect, so the deadline to get the first shot of Pfizer or Moderna is Sunday, Dec. 5.

Like the OSHA rule, Montana has filed a lawsuit against the CMS mandate, one of four the federal agency is facing. A Florida judge upheld the mandate in a single-state ruling, but Monday, a federal judge in the Eighth Circuit Court in Missouri blocked the mandate on behalf of 10 states, including North Dakota, South Dakota, and Wyoming. Montana is lumped in with 11 other states back in the Fifth Circuit in Louisiana, the same court that blocked the OSHA rule.

"Certainly it’s a good case for Montana," Johnstone said, "and we can expect Montana and the other states to urge the court to rely upon it."

Billings hospitals say they expect to suffer significant losses should the mandates take effect. As of Nov. 19, Billings Clinic officials said they still had 1,500 unvaccinated employees. Montana continues to have one of the lowest fully vaccinated populations in the country at just 51%.