Republican elected officials continue to challenge government mandates aimed at stopping the spread of Covid-19, but legal experts predict the lawsuits and bans on mandates will largely prove fruitless because the law allows for such public safety measures.
But as those legal fights play out America will probably still be riven by a dispute between mostly Democrats on one hand who argue they are trying to curb a deadly virus, and usually Republicans on the other who say the Biden administration is involved in government overreach, often using rhetoric that can veer into the conspiratorial.
Ten states filed a lawsuit on Wednesday seeking to block the Biden administration’s vaccine mandate for healthcare workers because it could “exacerbate an alarming shortage of health care workers, particularly in rural communities, that has already reached a boiling point”, the filing states. All the states but one have Republican attorneys general.
That petition comes days after a federal appeals court temporarily blocked a federal vaccine requirement for large businesses in response to a lawsuit from Republican officials, businesses and religious groups challenging the rules.
And judges in two states issued rulings on Wednesday offering potentially different outcomes for masking mandates in schools. In Texas, a federal judge ruled that Governor Greg Abbot’s ban on school mask mandates violated the rights of students with disabilities, which clears the way for districts to issue requirements for face coverings. The Texas attorney general tweeted that he was “considering all legal avenues to challenge this decision”.
In Pennsylvania, a state court ruled that the state health secretary did not have the authority to issue a school mask mandate, but the Democratic governor, Tom Wolf, appealed, which means the requirement can for now remain in place.
While the judicial rulings create hurdles for Democratic elected officials’ use of government authority to try to bring the pandemic to an end, legal experts say there is precedent for such health policy measures and that they will largely remain in place.
“There is no fundamental right to wear or not wear a mask in the public square,” said Derek Black, a law professor at the University of South Carolina School of Law whose focus is education law and policy, and constitutional law. “Even where some fundamental right might be impinged,” such as the right not to be vaccinated, “it doesn’t mean that it can’t be overridden if there is some compelling state interest for doing so.”
The latest wave of lawsuits comes after the Biden administration last week announced rules concerning vaccinations for companies with 100 or more employees, and healthcare workers.
The rule from the Occupational Safety and Health Administration (Osha), which the federal court blocked, would take effect on 4 January and require large companies to ensure their employees have been vaccinated or regularly administer Covid-19 tests for those who decline the vaccine and require them to wear masks at work. It would affect an estimated 84 million workers.
The rule concerning healthcare workers from the Centers for Medicare & Medicaid Services (CMS) has the same deadline – with no option for weekly testing rather than vaccination. That would affect 76,000 providers and more than 17 million healthcare workers.
The lawsuit concerning healthcare workers argues that the mandate is unreasonably broad in part because it includes staff who would probably not have contact with patients, such as construction crews.
But Sidney Watson, director of the Center for Health Law Studies at Saint Louis University School of Law, argues that the administration is on solid legal ground in issuing the vaccine mandate because hospitals must comply with certain conditions in order to receive payment through the Medicare and Medicaid programs, which they are not required to participate in but which almost all hospitals do.
The vaccination requirement “only applies to providers who step forward and say, ‘I want to take this federal money,’” said Watson.
But the Republicans are also challenging the mandate on the basis that it could hurt rural hospitals, which are already facing a labor shortage and could lose more employees who do not want to get vaccinated. Hospitals across the country are having a difficult time finding nurses, but the problem is particularly acute in rural areas, according to reports from Vox and PBS.
“We think the goal of having all employees in rural hospitals vaccinated is a good one. The problem is, the mandate and its timing may be difficult, especially if it leaves some hospitals with severe staff shortages,” said Brock Slabach, chief operations officer of the National Rural Health Association (NRHA), which is considering requesting during a public comment period that the CMS instead allow hospitals to regularly test unvaccinated workers, the same as the Osha rule for large companies.
But Watson, of Saint Louis University, said she sees concern about the mandate causing large numbers of employees to quit their jobs or be fired as speculation. She points to places like New York, where the police union warned that a vaccine mandate would cause 10,000 police officers to be “pulled from [the] streets”, but the number of officers who were placed on unpaid leave was ultimately only 34.
Despite his concerns about the mandate, Slabach does not expect courts to strike it down and is recommending that rural hospitals prepare to come into compliance with it.
In addition to facing a labor shortage, the rural healthcare organizations must also contend with a population base that is vaccinated against Covid-19 at a much lower rate than in urban areas. For example, in Pulaski county in central Missouri, only 17% of its more than 50,000 residents are fully vaccinated.
As such, it’s crucial that hospitals in such areas feature staff that is fully vaccinated because they could see a surge in Covid cases, said Slabach.
“When you complicate that with the fact that rural communities have populations that are more vulnerable to the disease itself, meaning they have co-morbid or chronic diseases” then vaccination is “critically important”, Slabach added.