Kansas Republicans challenge Joe Biden's COVID vaccine mandate. Can they really do anything to stop it?

Jason Tidd
Topeka Capital-Journal
Kansas Senate President Ty Masterson, middle, R-Andover, discusses President Biden's vaccine mandate for federal workers during the Legislative Coordinating Council meeting at the Statehouse.

Kansas Republican legislative leaders intend to challenge President Joe Biden's vaccine mandates, but they have yet to figure out how to approach the issue.

A Wednesday meeting of top legislative leaders at the Kansas Statehouse ended with Republican consensus that action is necessary.

"Something needs to be done," said Senate President Ty Masterson, R-Andover. "But what that is might be up in the air."

While Republicans were quick to criticize Biden's orders as a federal overreach, constituents have been calling for less talk and more action. That is difficult right now because the federal regulations have not been finalized.

More:COVID-19 spreads 'like wildfire,' infecting children at higher rates; 63 active outbreaks in Kansas schools

Attorney General Derek Schmidt, a Republican who is running for governor, has promised he would "vigorously challenge" the mandate if and when it comes to fruition.

However, Masterson told the Legislative Coordinating Council, the attorney general "can't sue a speech."

So far, Kansas Republicans have written a letter to Biden and the congressional delegation. Most legislators signed on, criticizing the "threat to withhold federal funding from health care providers." They called for allowing the health care industry "the flexibility they need."

Republicans earlier threatened to withhold funding

Masterson did a similar thing — threatening to withhold government funding over the issue of vaccine mandates — in past weeks.

The SPARK committee, which oversees the use of federal pandemic money, committed $50 million to boost pay for nurses. The plan originally called for blocking aid to hospitals that Masterson said had "counterproductive" vaccine mandates.

More:As Kansas officials eye bonus program for nurses, GOP leader threatens funds at facilities with vaccine mandates

Efforts to get people vaccinated have stalled, with less than half of Kansans fully vaccinated, according to the Kansas Department of Health and Environment. Meanwhile, the coronavirus pandemic is in the midst of a resurgence that is especially af

On Tuesday, Gov. Laura Kelly announced a partnership with Dollar General to give newly vaccinated Kansans $50 per dose. Republican leadership have previously shot down a broader $1.3 million vaccine lottery proposal from the governor.

"Getting every eligible Kansan vaccinated is critical to our efforts to slow the spread of the virus, protect our businesses, keep kids in school, and reduce strain on our hospitals," Kelly said.

The Republican letter, released Tuesday, warned that a vaccine mandate could further worsen the state's "severe shortage of healthcare workers."

The health care vaccine mandate is an extension of one that applied to nursing homes.

Despite their opposition to federal vaccine mandates now, Republicans legislative leadership didn't issue statements when the Centers for Medicare & Medicaid Services announced plans for requiring staff vaccinations at nursing homes.

Health care workers quit amid COVID surge

Health care workers are quitting anyway amid the delta-fueled surge in COVID-19 cases, hospitalizations and deaths.

At The University of Kansas Health System, hospital officials said Tuesday that 15 respiratory therapists have quit in the past three weeks due to exhaustion and frustration with the latest pandemic surge.

"I feel like a lot of the health care community is feeling the burnout and feeling the pressure because people don’t think it’s real — and it is very real," said Julie Rojas, a respiratory therapist who works in the ICU.

Rojas asked people to wear a mask, follow other health guidelines and to trust medical providers when they say vaccines are safe and effective.

"You trust us with your life when you come in here, but you don't trust us when we tell you this is safe," she said.

More:Kansas long-term care facilities see low staff vaccination rates, but federal mandate may spur worker shortage

Jace Knutson, a pharmacist in the ICU at the KU hospital, said there had been hope when the vaccines first came out. But vaccination rates remain low as the pandemic has worsened.

"The work feels heavy. ... The mood feels different this time, especially knowing there are options out there to limit the amount of folks who are coming into the hospital with severe COVID," Knutson said.

"Seeing where our vaccination rates are and seeing where our hospitalization rates are, and the complications and death that are coming with that, it's really frustrating knowing that a lot of this mortality and morbidity is completely preventable," he said.

What can Republicans do to stop Biden plan?

House Speaker Ron Ryckman, R-Olathe, suggested that Kansas could pass a law declaring that Kansas businesses don't have to pay federal fines. But federal officials could still fine the businesses, and the state could be on the hook for millions of dollars a day, he said. It could also jeopardize the $4.1 billion in Medicare and Medicaid funding coming into the state each year.

"We want to find real solutions to these problems before we start doing things that could be reckless," Ryckman said. "And why while I'm on the mic here, I want to be clear that I believe folks should should be vaccinated. I just don't believe they should be told or mandated to."

Senate Minority Leader Dinah Sykes, D-Lenexa, said she doesn't agree with mandating vaccines.

"But it's not really a mandate when there's another option," she said. "It says get a vaccine or have regular testing."

Sykes, who was the only legislator to wear a mask during the meeting, said the spread of COVID-19 needs to be mitigated.

"When we are up here debating and say, 'Yes I support vaccinations, but everyone gets the right and we don't need to be telling people what to do.' ... We need to be leaders and showing that yes, you can take a responsible decision of getting a vaccine or having regular tests to make sure that you're keeping those around you safe," Sykes said.

Masterson noted that without the finalized federal rules, no one ones what the testing regimen would actually entail. He also called for requiring vaccinated workers to get tested, because they can get and spread the virus, though to a lesser degree than unvaccinated people.

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He said the president's "dictatorial edict" creates an unnecessary battle between the vaccinated and "the unwashed masses."

Masterson directed legislative staff to look into the Legislature's options and report back.

"It's hard to analyze," said Gordon Self, the revisor of statutes, "because the implementation rules and guidelines have not been issued. ... Our looking into options and stuff will be dependent on what the rules and guidelines actually say."

The Legislature has limited options because it is not in session, Self said.

It would be difficult for the Republican-controlled Legislature to call a special session, which requires two-thirds of legislators to sign on or approval of the Democrat governor.

Individual rights vs. public health

Steve Stites, the chief medical officer at The University of Kansas Health System, said Wednesday that unvaccinated people are "a threat, from a health perspective, to all of us."

"The problem with an unvaccinated population is that it impacts all of society," Stites said. "It's going to make more people sick and more people die. It's going to prevent the economy from getting back. It's going to prevent all of us from getting back to a normal life."

Stites questioned how some people interpret the Constitution and freedom.

"Do we get to run a red light? Can we take a car and run it into a building? Can we start somebody's house on fire because we're mad at them? The answer to that is of course not," he said. "So at what point does someone who's unvaccinated, who can torpedo the lives of others around them ... do we say it's not OK?"

"At what point is individual freedom trumped by a societal responsibility?" he asked.

What are Biden's vaccine mandates?

Last week, Biden announced plans to require more Americans to be vaccinated.

"This is not about freedom or personal choice," he said in a speech. "It’s about protecting yourself and those around you."

Biden has directed the Department of Labor to develop regulations mandating vaccines at private businesses with 100 or more employees. Such a mandate would apply to an estimated 80 million people. Workers could still choose to not get vaccinated, but they would have to get tested at least once a week.

Those employers must also give workers paid time off to get vaccinated.

The Occupational Safety and Health Administration will mandate vaccination with an emergency temporary standard, under which the agency has the authority to take action when workers are in a grave danger.

The president also extended previous vaccination requirements in the health care industry. In August, Biden announced plans to require nursing home workers who treat Medicare or Medicaid patients to be vaccinated.

"I have that federal authority," Biden said.

More:Who is covered by Biden's new vaccine mandates and when do they go into effect? Here's what we know.

He is using the same authority to extend the mandate to all 17 million health care workers in hospitals and other medical facilities.

"If you’re seeking care at a health facility, you should be able to know that the people treating you are vaccinated," Biden said.

All executive branch federal employees and employees of federal contractors will also be required to get vaccinated. While Biden said all educators in the federally funded Head Start program must be vaccinated, he also called for governors to require vaccination for all teachers and staff.

Kelly has been noncommittal in how to respond to Biden's plans.

"As this announcement will impact many Kansans, we are still waiting on additional guidance on what this plan means for our residents and our administration needs to thoroughly review it further before we comment on specifics," said Sam Coleman, a spokesperson for the governor. "In the meantime, Kansas families can rest assured that the governor will continue to make any decisions relating to COVID-19  based on science, not politics."