Ping-pong ball bounce could determine vaccine mandate's fate

Although the vaccine mandate has been suspended, leaders of both Ballad Health and ETSU urged their employees to take the COVID vaccination.

After two federal judges issued injunctions temporarily halting the Biden Administration’s vaccine requirements for healthcare workers and federal contractors, both Ballad Health and East Tennessee State University announced they were suspending their vaccine requirements.

In separate rulings on Tuesday in Kentucky and Louisiana, Judges Gregory F. Van Tatenhove of the U.S. District Court of Eastern Kentucky and Judge Terry A. Doughty of the U.S. District Court of Western Louisiana said they don’t believe the president has the authority to issue such a mandate, blocking the President Joe Biden’s vaccine mandate for federal contractors and healthcare workers, respectively.

“There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency,” Doughty wrote. “It is not clear that even an Act of Congress mandating a vaccine would be constitutional. Certainly, CMS (Centers for Medicare & Medicaid Services) does not have this authority by a general authorization statue.”

The mandates would have required certain employees to receive their first shots of the vaccine by 6 p.m. on Sunday, Dec. 5, and be fully vaccinated by Jan. 4. Both cases must still be argued in front of a judge and will likely be embroiled in a lengthy litigation and appeals process.

Fourteen states filed suit challenging the mandate for healthcare workers, led by Louisiana, while Kentucky, Ohio and Tennessee filed suit challenging the mandate for federal contractors in November. Both suits argued the mandates were unconstitutional.

“Unless we intervene, federal contractors in Tennessee will be forced to make sense of the mandate’s many inconsistencies that require their entire workforce be vaccinated or face potential blacklisting and loss of future federal contracts,” Tennessee Attorney General Herbert Slatery said in a statement announcing the suit on Nov. 4. “That is simply unworkable and this lawsuit seeks to stop it.”

Following Tuesday’s ruling, the Tennessee Comptroller’s Office announced Wednesday morning that it was suspending exemptions from a state law preventing most employers from issuing vaccine mandates, which were granted to allow those entities to comply with the order and keep their federal funding. If the vaccine mandate is restored, however, “these exemptions may be reinstated if the injunctions are lifted, and it is legally permissible,” a statement from the Comptroller’s Office said.

Applications will still be processed, but no exemptions will be granted “unless it is legally permissible.”

As a result of the injunction and suspension of its exemption to the state law, ETSU President Brian Noland said the university will be ending its mask mandate and suspending its vaccine mandate for affected employees.

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“As new strains of COVID-19 continue to appear, I strongly urge anyone who has not been vaccinated to consider getting the vaccine,” Noland wrote, adding later that he “also encourage(s) individuals to continue wearing masks to prevent the infection and spread of COVID-19.”

“Please remember that everyone’s health situation is unique, and I ask that our students, faculty, and staff be respectful of individual decisions regarding masking,” he continued.

Ballad Health CEO Alan Levine previously expressed his opposition to a federal vaccine mandate for healthcare workers, which he said could exacerbate already severe nursing shortages.

“In my view, people in Washington (D.C.) do not seem to understand that health equity and cultural differences in the delivery of care have to consider the fact that people do live in rural communities and their cultural differences are not irrelevant,” Levine said in November.

In a memo to staff on Wednesday, Levine said the system will be suspending its vaccine requirement, pending the outcome of the litigation.

“We continue to urge you to consider the vaccination, particularly if you are at higher risk of serious illness,” Levine wrote. “The number of hospitalizations is increasing, and we continue to see that the overwhelming majority of people who are dying or suffering significantly, are NOT vaccinated.

“It is clear the vaccination does not prevent the spread of the virus, although it may slow it down,” he continued. “The evidence strongly shows that those who are vaccinated, and who get the virus, largely do not wind up being hospitalized or seriously ill.”

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