Red States Have Limited Options for Fighting Biden’s Vaccine Rules


As Montana intensive care units fill with critically ill, mostly unvaccinated COVID-19 patients, hospital leaders there are caught between two laws that dictate whether they can require their employees to get immunized against the coronavirus.

A state law that Republican Gov. Greg Gianforte signed in May prohibits Montana employers from requiring workers to get vaccinated. But President Joe Biden plans to require health care employers to mandate worker vaccinations at facilities that treat patients with public health insurance. Facilities that don’t comply risk losing federal reimbursement.

“It has put, particularly hospitals, in a very difficult position of having a state law that says, ‘You can’t vaccinate,’ and a federal rule that says, ‘If you want to be paid (by the federal government), you have to vaccinate,’” said Rich Rasmussen, president and CEO of the Montana Hospital Association, a Helena-based trade group.

In eight states, including Montana, Republican legislatures or governors enacted laws or issued executive orders this year that ban certain employers from requiring proof of vaccination.

Some of those requirements could clash with Biden’s plan to mandate that federal contractors and many health care facilities ensure workers are vaccinated against COVID-19, and to require businesses with 100 or more employees to ensure workers are either vaccinated or regularly tested.

The degree of conflict in each state will depend on how its requirements are written — and how upcoming federal rules are written. But federal law will preempt any conflicting state law or executive order, legal experts say. So even though Republican state lawmakers have vowed to fight Biden’s plan, there’s little they can do about it.

“If the federal law is valid, it’s the supreme law of the land — end of story,” said Anthony Johnstone, a professor at the University of Montana’s Blewett School of Law.

The vast majority of patients who are critically ill or dying of COVID-19 in the United States today haven’t been immunized, Biden noted last month when he announced the new vaccination requirements. “This is a pandemic of the unvaccinated,” he said.

Republican governors, attorneys general and state lawmakers rejected the plan immediately, calling it an unlawful power grab. Many of those GOP leaders, even some who are vaccinated, have sided with vaccine skeptics who say people should be free to make their own health care decisions.

Many Republican lawmakers now are searching for ways to resist the federal rules. An Idaho legislative interim committee met this week to discuss five draft bills intended to exempt Idahoans from vaccine requirements. A Utah committee met to discuss the Biden plan. Lawmakers in other states, including Kansas, Missouri and Tennessee, are announcing hearings and calling for special sessions.

Arkansas lawmakers just approved legislation that would require employers to let workers opt out of a COVID-19 vaccine if they undergo weekly testing or can prove they have COVID-19 antibodies, though Republican Gov. Asa Hutchinson opposes the bill. (The federal Centers for Disease Control and Prevention and the Food and Drug Administration advise against using antibody tests to determine one’s level of immunity against COVID-19.)

During the Idaho hearing, Republican state Rep. Bruce Skaug proposed copying Montana’s law, which prevents state and local agencies and private employers from discriminating against unvaccinated people.

Such a law would shield Idaho workers, he said. “Our state would stand with our state employees, and say, ‘This is the law in Idaho, we’re going to butt heads with the federal government on this, and we do not have to comply with you, federal government,’” Skaug said. “We’re sticking with our state law.”

But given the federal government’s preemption powers, state legislation is unlikely to halt Biden’s plan, legal experts say. State leaders’ best bet may be to use litigation or delay tactics to undermine one piece of it: the worker safety rule for companies with 100 or more employees. Two dozen Republican attorneys general already have announced plans to sue over that standard.

Even if such lawsuits succeed, their effect could be limited, said Eric Conn, a founding partner of national law firm Conn Maciel Carey. He represents employers navigating federal worker safety requirements.

Large employers already are imposing COVID-19 vaccine requirements, in some cases citing the Biden plan, he said. “The rule is already doing what it was intended to do.”

By February, lawmakers in at least 23 states had proposed banning private employers from requiring COVID-19 vaccines. Most proposals didn’t get far, as they were opposed by employers, who want the right to decide whether employees need to be vaccinated.

Montana’s sweeping law, however, passed with strong support in the Republican-controlled legislature. The law applies to any vaccine, not just COVID-19 immunizations. It is the only one of its kind in the nation.

The law gives people the right to make their own decisions, according to its sponsor, Republican state Rep. Jennifer Carlson. “I continue to stand up for the right of every Montanan to make personal vaccination choices for themselves and their children,” she wrote in a September Facebook post. Carlson did not respond to requests for comment.

Legislators in several other states have passed laws banning state and local governments from requiring proof of COVID-19 vaccination.

Arkansas and Tennessee, for instance, prohibit state and local agencies from requiring people to be vaccinated. Michigan prohibits state agencies and state-funded entities — other than health care facilities — from asking for proof of vaccination from employees or others.

Utah bans state and local governments from requiring COVID-19 vaccines that haven’t been fully approved by the U.S. Food and Drug Administration. That law no longer applies to the Pfizer vaccine, which the FDA fully approved in August.

Now Biden’s vaccination plan is set to override parts of state laws.

Take Montana. “The federal rules will trump the state law — if they’re valid — in several key sectors of Montana businesses and health care,” said Johnstone, the law professor. Federal contractors in the state will have to ensure their workers are vaccinated. Major health care employers likely will have to do the same, although their situation is more complicated.

“Technically, it’s not clear if the state law would require them to give up the federal funding,” Johnstone said, “which would be catastrophic to any hospital.”

Biden’s planned worker safety rule would override the state ban on vaccine discrimination for larger businesses, Johnstone said, but the state law still would apply to small employers.

The Biden plan also could clash with anti-mandate laws in states that have their own occupational safety plans, which are partly funded by the federal Occupational Safety and Health Administration, or OSHA. Twenty-one states run their own plans, which must include workplace protections that are at least as stringent as federal rules for state, local government and private-sector workers.

Under Indiana law, for instance, state agencies can’t require people to provide written or electronic proof of COVID-19 vaccination. That could complicate the task facing Indiana OSHA, which will have to enact a version of Biden’s proposed worker safety rule — which prods employers to track worker vaccinations.

States that run their own OSHA plans also will have to apply the federal rule to employees of large state agencies, said David Michaels, a professor at the George Washington University School of Public Health and a former administrator of the federal OSHA.

Michaels, Conn and other OSHA experts noted that the proposed Biden rule on large employers won’t force them to ensure that their workers are immunized. An employer could comply with a state ban and federal law by, for instance, requiring all workers to get regularly tested for COVID-19, Conn said. That means the rule won’t necessarily preempt state vaccination bans.

Governors and health agency leaders in 16 Democratic-led and three Republican-led states require some or all state employees to be vaccinated against COVID-19 or get regularly tested. Those mandates align with the Biden requirements, legal experts say, and so aren’t likely to raise preemption questions.

Republican governors and attorneys general already are planning to turn to the courts to undermine the federal rules.

Biden directed OSHA to write an emergency, temporary standard that will remain in effect for six months. The agency rarely releases such standards, and they’ve been struck down by courts before.

Republican attorney generals argued in a letter they sent to Biden last month that the 100-employee threshold is arbitrary; that COVID-19 doesn’t present a grave danger to workers, as it generally doesn’t severely sicken healthy young people; and that it’s not a true workplace hazard, as the virus is spreading everywhere.

Supporters of the proposed rule doubt those arguments will succeed. COVID-19 poses a clear threat to worker safety, said Debbie Berkowitz, a former senior OSHA official and a fellow at the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University.

“We have known from the beginning of the pandemic that the workplace is a significant driver of the spread of COVID-19,” she said. “It was true in March 2020, it was true in March 2021, and it is true today.”

GOP state leaders’ best shot at fighting the rule may be delay tactics. Republican governors who oppose Biden’s vaccination plan lead eight states — Alaska, Arizona, Indiana, Iowa, South Carolina, Tennessee, Utah and Wyoming — that run their own worker safety agencies.

Such agencies have 30 days to implement emergency, temporary standards that are at least as effective as any new federal rules. If state leaders refuse to do so, federal OSHA could move to take over the state plan.

But it’s easy for governors and state leaders to drag their feet.

While state agencies in left-leaning states, such as California, may quickly issue their own emergency rules, others will stall, Michaels said. “This will not be implemented everywhere immediately.”

Utah still hasn’t implemented a version of a June federal emergency, temporary standard designed to protect health care workers from COVID-19, state Labor Commissioner Jaceson Maughan told lawmakers at this week’s hearing. “We have not adopted it, and it expires in December.”

The June standard requires leaders of hospitals, nursing homes and other high-risk settings to have a written plan to reduce the spread of COVID-19 at work, and to take precautions such as giving workers face masks. The rule also requires employers to give workers paid time off to get vaccinated, recover from vaccine side effects or recover from COVID-19 infections.

Utah Republican Gov. Spencer Cox objected to the rule’s paid time off requirement and raised concerns about it in a letter to federal officials, Maughan said. “We have yet to hear back on that.”

With the standard’s expiration date looming, he said it’s doubtful Utah will end up adopting it.