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North Dakota joins 3rd lawsuit over vaccine mandates, 2 businesses file similar challenge

The U.S. Centers for Medicare and Medicaid Services, known as CMS, announced last week, that health care staff across the country will have to be fully inoculated against COVID-19 or approved for a religious or medical exemption by Jan. 4, 2022 — barring any hold-ups from the courts. Nursing homes and hospitals that don't comply risk losing crucial funding from the agency.

North Dakota Attorney General Wayne Stenehjem
North Dakota Attorney General Wayne Stenehjem. Forum News Service file photo
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BISMARCK — North Dakota has joined nine states in suing the administration of Democratic President Joe Biden over a COVID-19 vaccine mandate affecting health care workers. It's the third time in the last two weeks the state has sued the White House aiming to halt vaccine requirements.

The U.S. Centers for Medicare and Medicaid Services, known as CMS, announced last week that health care staff across the country will have to be fully inoculated against COVID-19 or approved for a religious or medical exemption by Jan. 4, 2022 — barring any hold-ups from the courts. Nursing homes and hospitals that don't comply risk losing crucial funding from the agency.

North Dakota Attorney General Wayne Stenehjem announced Wednesday, Nov. 10, the state is mounting a legal challenge aiming to halt the mandate along with Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota and New Hampshire. All of the states have Republican attorneys general except for Iowa.

Last week, Stenehjem announced the state was joining a lawsuit over a federal vaccine mandate on workers at large businesses . The week before, he filed suit against the Biden administration over vaccine requirements for federal contractors .

“Yet again, this lawsuit is not about whether people should get vaccinated," Stenehjem said in a news release. "Instead, it is about federal overreach and the federal government using an unconstitutional mandate to force front-line health care workers to choose between a vaccination or unemployment. North Dakota is already experiencing a shortage of healthcare workers, and this mandate will only exacerbate the situation."

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The lawsuit says the Biden administration and CMS have violated administrative procedure laws, the Anti-Commandeering Doctrine and the Tenth Amendment of the U.S. Constitution.

Republican Gov. Doug Burgum has publicly expressed support for all three lawsuits over the vaccine requirements.

Meanwhile, in a separate action, a group called America First Policy Institute, along with a group called the Alliance for Free Citizens, has filed a petition with the Eighth U.S. Circuit Court of Appeals on behalf of two North Dakota businesses challenging the OSHA vaccine rule.

The petitioners include DTN Staffing Inc., an employment agency in Mandan that employs nurses and other healthcare workers, and Miller Insulation Co., a Fargo business.

According to the petition, OSHA's emergency temporary standard mandating vaccinations against COVID-19 in businesses of 100 or more workers is unconstitutional because, among other things, it expands the reach of the agency's power beyond that granted by Congress and it violates the free exercise clause of the First Amendment.

The petition states that Jamie Fleck, president and owner of DTN Staffing, is unvaccinated for health reasons and doesn't want to force any employees to take a vaccine they are unwilling to take.

Fleck also believes enforcement of the OSHA order will cause up to half of her nurse employees to quit, in addition to costing the business an estimated $9 million to $12 million in the coming year, the petition says.

The petition also states that Brad Miller, present and chief executive officer of Miller Insulation, fears he will lose 25% of his workforce if compelled to comply with the ETS. The petition also asserts the company could lose more than $1 million in the coming year because of the OSHA rule.

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According to the petition, Corey Hager, chief financial officer of Miller Insulation, and Aaron Janz, a project manager for the company, object to taking the vaccine because they have already had COVID-19 and possess natural immunity.

Julio Hernandez Ortiz, an insulator for the company, objects to taking the vaccine because it would violate his religious beliefs, the petitions says.

"It is our belief that the federal government is violating the rights of Americans by infringing on individual liberty and Americans’ right to make personal health decisions without the risk of losing their job and their ability to put food on the table for their family," AFPI said in a statement announcing the petition.

The statement added that the Constitutional Litigation Partnership at AFPI will be representing the plaintiffs.

Jeremy Turley is a Bismarck-based reporter for Forum News Service, which provides news coverage to publications owned by Forum Communications Company.
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