Legislative committee questions consequences of Biden’s vaccine order

By Ruth Brown, Idaho Reports

The Idaho Legislature’s Committee on Federalism met Wednesday to discuss President Joe Biden’s recent announcement on employee vaccinations.

Idaho still has one of the lowest vaccination rates in the country. Crisis standards of care has been activated statewide due to a flood of COVID-19 patients, the overwhelming majority of whom are unvaccinated. 

On Sept. 9, Biden announced that the Occupational Safety and Health Administration (OSHA) is developing an emergency standard obligating employers with more than 100 employees to require they be vaccinated or tested weekly for COVID-19.

According to the Idaho Department of Labor, Idaho has 781 private covered employers with more than 100 employees. Those businesses employ a combined total of 203,000 people. With government employers included, there are 980 employers with 266,000 employees in Idaho. 

Biden’s order also applies to all facilities and providers that accept Medicaid and Medicare, as well as federal contractors.

Chief deputy attorney general Brian Kane offered a presentation on Biden’s executive order, noting that a timeline and further detail on the executive order had not yet been released. 

The new standard from Biden would fall under an ETS, or emergency temporary standard, intended to protect employees under OSHA from “grave danger.” The interpretation of what presents a “grave danger” could be left to the courts.

Kane said there are questions around several issues with the federal order, including whether COVID is an occupational hazard or a hazard that affects everyone in the public, as well as whether Congress intended to grant this sweeping authority to OSHA.

Those are questions that are expected to play out in court.

Rep. Wendy Horman, R-Idaho Falls, asked whether a school could be required to vaccinate staff if a public school accepts a Medicaid reimbursement for a special needs student. Kane said his interpretation was it could be a requirement for the school.

Sen. Steve Vick, R-Dalton Gardens, noted that some providers, such as dentists, don’t accept Medicare. But, if they do, they could be subject to the vaccination or testing requirement Biden put in place. 

April Renfro, Legislative Services audit division manager, provided information on how much funding the state receives through Medicaid and Medicare, and its financial impact.

Renfro’s presentation showed that in 2021, the state was on track to see nearly $6 billion in federal expenditures. Of that, more than $2 billion was in Medicaid expenditures that could be reimbursed, should the state be in compliance.

Jon Jukuri, an advisor with the National Conference on State Legislatures, spoke to the committee virtually Wednesday. Jukuri said he anticipated at least 22 states will seek legal action, challenging Biden’s order.

The committee took more than an hour of public testimony in the morning and another hour in the afternoon, with the majority of speakers opposed to Biden’s plan.

Some who testified Wednesday argued that the order from Biden was unconstitutional.

Among those who testified were some legislators, including Rep. Ron Mendive, R-Coeur d’Alene, who strongly challenged Biden’s order. 

Mendive said it was “disturbing” to him that natural immunity hadn’t been taken into deeper consideration. He also promoted two disproven treatments for COVID-19, questioning the vaccine’s effectiveness.

“America has been conquered by fear and we’re now in the process of surrendering our liberty and our freedom,” he said. “And our founders fought. They pledged their lives and their fortunes and their sacred honor to give us this freedom we’ve enjoyed in this country. And we are very close to losing it.”

Mendive’s legislative district is in one of the first health districts to declare crisis standards of care at hospitals.

Gov. Brad Little and legislative leadership have threatened to take legal action against Biden, calling it “unprecedented government overreach into the private sector.”

The Committee on Federalism did not take action Wednesday, but will meet again at 10 a.m. Sept. 28.

For more information on coronavirus in Idaho and the vaccine, visit coronavirus.idaho.gov.

Idaho Reports is airing a 30-minute special on the implications of crisis standards of care and its impact on all patients at 8 p.m. Friday on Idaho Public Television.

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