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MT businesses, hospitals face dilemma with fed vaccine mandates

State law forbids employee vaccine mandates
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Posted at 3:50 PM, Sep 17, 2021
and last updated 2021-09-17 18:21:36-04

HELENA — Montana hospitals and larger businesses in the state are getting ready to wriggle on the horns of a COVID-19 dilemma, as they confront two upcoming federal rules forcing employee vaccines – and a state law forbidding such mandates.

“It just raises a lot of questions, a lot of concerns, and it’s something that the business community is really trying to figure out how they’re going to comply,” Montana Chamber of Commerce President Todd O’Hair told MTN News this week.

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Todd O'Hair, president of the Montana Chamber of Commerce.

The Biden administration is preparing a rule to require all businesses with 100 employees or more to require their workers to be vaccinated against COVID-19.

And, the federal Centers for Medicare and Medicaid Services (CMS) soon will be requiring vaccination of all staff at hospitals and some other healthcare facilities that receive federal funding – or they won’t get paid under those coverage plans.

“There is not a hospital in this state that could financially survive, not receiving payments from Medicare and Medicaid,” said Rich Rasmussen, president of MHA, the lobby group representing Montana hospitals.

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Rich Rasmussen, president of MHA.

At the same time, Montana may be the only state in the nation with a law essentially forbidding employers from requiring employees to be vaccinated.

The state’s Republican majority at the Legislature passed the law this April and Republican Gov. Greg Gianforte signed it. All Democrats in the Legislature voted against it.

Anthony Johnstone, a law professor at the University of Montana, said Friday the 100-plus-employee business rule, enforced by the Occupational Safety and Hazard Administration, should trump state law – if it withstands court challenges.

Authority of the CMS rule over state law is less clear because it ties compliance to Medicare and Medicaid payments, he said.

Nonetheless, hospitals and businesses in Montana say they’ll be figuring out how to comply – with the expectation that lawsuits from all sides could complicate the matter.

“The businesses are caught right in the middle of that sort of tug-of-war that’s going on right now, and a lot of it will have to be sorted out in the courts,” O’Hair said.

He said some businesses also are considering whether they want to challenge the Montana law in court. Both the business community and Montana hospitals would rather the decision on vaccinations be left to each private business and its unique concerns.

“There are businesses that have those unique situations where they would like to be able to mandate their employee get vaccinated,” O’Hair said. “If you’re a physical therapist, for example, or if you’re a restaurant that is very concerned about being able to get your employees vaccinated.”

And while many hospitals would like to be able to require vaccinations for employees, in certain circumstances, others may not, Rasmussen said.

“In some communities it may make sense for a facility to require the flu vaccine, or, certainly, to require the CDC-recommended vaccinations,” he said. “And in some communities, they may feel that a requirement wasn’t necessary.”

Most Montana hospitals also have more than 100 employees, Rasmussen said, putting them under the purview of both rules.

O’Hair questioned whether the business rule will achieve the goal of increased vaccination in Montana because the state has so few businesses with 100 or more employees.

O’Hair didn’t have exact figures, but Census data indicate that about 100,000 Montanans work for larger companies or less than a fifth of the state’s overall workforce.

Businesses also are worried about the rule’s impact on the workforce and the ability of larger companies to hire, in the face of labor shortages, he said. If an employee doesn’t like the vaccine mandate, he or she may leave for a smaller, unregulated firm, he said.

Rasmussen said hospitals also have many questions about how the rules will be enforced, such as when the deadline for compliance will be, whether the rules apply immediately to new hires, or how they would apply to traveling nurses who are being brought into the state to bolster overwhelmed staff.

“It just creates a lot of questions that we don’t have answers for at this point,” he said.

Republican Attorney General Austin Knudsen says he’ll be challenging any federal vaccine mandates in court, likely joining other Republican state AGs.

The two Republican members of Montana’s congressional delegation – Sen. Steve Daines and Rep. Matt Rosendale – also have said they oppose federal vaccine mandates.

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U.S. Sen. Jon Tester, D-Mont.

Yet Democratic Sen. Jon Tester told MTN News Thursday that while he’s not a fan of mandates, he feels like President Biden had to take action, to beat back the virus and prevent the economy from floundering.

“We got our hospitals full to the brim with people who are dying of Covid,” he said. “I would just beg people, if you haven’t been vaccinated, please go out and get vaccinated. It’s the right thing to do for yourself and your neighbors.”

“If we don’t, we’re going to end up right where we were a year ago, and that’s not what we want our economy to be. … I wish the president hadn’t had to do it, but I think the president had to do it.”