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The Senate Passes a Measure Aimed at Undoing the Vaccine Mandate for Healthcare Workers

The Supreme Court allowed it to stand last month, but lawmakers say the measure punishes the health care workforce.

The Senate voted on Wednesday to repeal President Biden’s COVID-19 vaccine mandate for healthcare workers, which had been greenlighted by the Supreme Court. The measure was approved 49-44. 

Sen. Roger Marshall, R-Kan., introduced a Congressional Review Act resolution in December aimed at undoing Biden’s Centers for Medicare & Medicaid Services vaccine mandate. The 1996 Congressional Review Act gives Congress the ability to overturn agency rules during a certain period of time following their issuance. Both chambers must pass a resolution for the president to sign, but Biden will likely not sign a measure undoing his own policy. 

On the Senate floor Wednesday, Marshall lauded the work of health care professionals during the pandemic and said “heroes are being punished” by the vaccine mandate. He raised concerns that the mandate could exacerbate staffing shortages, especially in rural areas, 

“In addition to the impact these would have on the health care workforce, this mandate puts additional burdens on hospitals and state surveyors,”the senator said. “The rule requires covered entities to comply with red tape by requiring them to develop and implement policies to ensure compliance with mandate, meanwhile taking nurses away from that contact with the patients who need the attention.” 

Marshall continued: “As a physician I’m confident that the vaccine has saved lives and I’m so grateful for vaccines, however, whether to receive it or not is a personal choice between individuals and their doctor, not mandated via unconstitutional executive actions.” 

Meanwhile, Sen. Ron Wyden, D-Ore., said on the Senate floor, “this is something the Supreme Court has ruled on…and agrees with our position that in effect this is an area where there is a strong public interest.” Wyden added, “there simply is a point where an anti-mandate agenda becomes a dangerous anti-vaccine agenda.” 

Legal challenges to the Occupational Safety and Health Administration and CMS vaccine rules made it to the Supreme Court earlier this week. In January, the court blocked the OSHA one, but allowed the CMS mandate to take effect in the 24 states that it was halted in. The final injunction – which was in Texas – was lifted on Jan. 19, so the mandate is nationwide now, according to a post from the law firm Foley & Lardner LLP.  “Employees and contractors in all states now require at least one vaccine or have made an exemption request.” 

Rep. Jeff Duncan, R-S.C., introduced a companion version of the resolution in the House in December aimed at the CMS mandate. He led a coalition of House Republicans who sent a letter to House Speaker Nancy Pelosi, D-Calif., on Feb. 23 calling for a vote on the measure.

Following the Supreme Court ruling, “CMS Administrator Brooks-LaSure justified moving forward with its vaccine mandate saying, ‘health care staff being unable to work because of illness or exposure to COVID-19 further strains the health care system and limits patient access to safe and essential care,’” said the letter. “However, the irresponsible mandate runs counter to the goal of ensuring access to quality care by forcing healthcare providers to choose between firing large chunks of their workforce or enduring crippling penalties that put essential Medicare and Medicaid funding at risk.” Duncan also filed a discharge petition on Feb. 28 to get the measure out of committee. 

Politico reported on Feb. 28 how health care workers could be avoiding the vaccine mandate, which is up to health care facilities to carry out. 

“Hospital officials from several states said they created simple forms to meet the administration’s mandate, which requires all health workers, including those not directly involved in patient care, to either get vaccinated or have a hospital-approved religious or medical exemption,” said the report. “While the federal government doesn’t track the number of religious exemptions, anecdotal evidence indicates they are widespread in health care settings.” 

Republicans in the House and Senate also attempted to use the Congressional Review Act to undo the OSHA vaccine rule for private businesses with 100 or more employees, which ultimately did not happen as the Supreme Court ruling happened before a vote in the House.

During his State of the Union address on Tuesday night, Biden touted his administration’s progress on providing vaccinations to Americans and countries worldwide. 

“If you’re vaccinated and boosted, you have the highest degree of protection, and we'll never give up on vaccinating more Americans,” he said. 

Then, the White House released a statement of administration policy on Wednesday as the vote was happening, strongly opposing the resolution. 

"Giving patients additional confidence regarding the safety and quality of their care is a critical responsibility of the Centers for Medicare & Medicaid Services, and a key to combating the pandemic," said the statement. 

"As the Supreme Court said with respect to this rule, '[E]nsuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm," said the statement. "It makes no sense for Congress to reverse this much-needed protection for medically vulnerable patients, as well as our health care workers who have given so much to protect us." 

The White House said Biden would veto the measure if it comes to his desk. 

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