Orlin Wagner / AP
Republican lawmakers across the country seem determined to take on the Biden government’s insistence that employers require their workers to be vaccinated against COVID-19.
The Kansas Legislature will hold a special session starting Monday to battle the federal government over vaccine mandates. But the courts are likely to have the final say on whether mandates are legal, and some fear that such bold action will further diminish the state’s ability to respond to public health crises and place employers in a legal bind could.
Last week, the labor protection agency suspended enforcement of its own temporary emergency standard, which requires companies with 100 or more employees to either vaccinate or undergo regular tests by January 4, 2022.
With the rule in limbo, the Republicans who dominate the Kansas legislature are unlikely to abandon plans to give workers the freedom to dodge mandates.
“We will not allow the Biden administration to force corporations to play god or doctor and determine whether or not a religious or medical exception is valid,” said Republican Senate President Ty Masterson in a statement announcing the meeting. “We will trust individual Kansans.”
Throw everything against the wall
The Kansas bill reflects a new law passed in Iowa that extends a person’s ability to opt out of the vaccine and keep their job – or receive unemployment benefits.
Conservative lawmakers in Florida, Iowa, Kentucky, Tennessee, Wyoming, and North Dakota have already completed special sessions and passed bills to repeal new federal mandates.
Florida lawmakers passed bill that fines companies $ 10,000 per violation for failing to offer their employees a series of exemptions. The Wyoming governor signed just one of 20 bills drafted during the special session – a bill that gives his office $ 4 million to challenge federal vaccine mandates.
The new Iowa law instructs employers to waive the compulsory vaccination requirement for any employee who believes the vaccine would affect their health or well-being or that of another person, or if they say it would be contrary to their religion. And they don’t have to provide any proof. Five of the states, including Kansas and Iowa, will elect governors next year.
Kansas state lawmakers passed a bill earlier this year amending the Kansas Emergency Management Act to shift power from local health officials and the governor to elected district officials.
But even if the federal mandate is lifted, new state laws that make changes to religious exceptions in Kansas could transform the legal and public health systems for years to come.
“It looks like the bills were designed so that the exemptions swallow the rule,” said Sharon Brett, legal director of the Kansas Chapter of the American Civil Liberties Union.
Brett says there is no religious freedom provision in the First Amendment that allows one person to endanger another person by practicing their religion.
If employers have incentives to cut corners on verifying the sincerity of a worker who relies on religious exemption, it would be a fundamental change, according to Brett.
“There is basically a two-tier system of justice,” says Brett, “where people’s religious rights are put above public safety in a free society.”
Schools could be affected
New laws strengthening religious exemptions for COVID-19 vaccines could also result in undermining laws on the books that require vaccinations for school-age children.
“It sets a precedent,” says Dr. Marcus Plescia, the Chief Medical Officer of the Association of State and Territorial Health Officials. “It is of particular concern for vaccinations in children.”
He cites previous national measles outbreaks where some people received religious exemptions and remained unvaccinated. In such cases, says Plescia, public health officials have often been able to influence religious leaders to convince them of the good vaccines in their communities.
But in this case he said that some of these religious exceptions “are not really something that the religions themselves require”.
State and local health authorities face this political and legal battle when they are already under siege from the pandemic. This makes it difficult to campaign against new laws that could have far-reaching effects on a range of vaccinations.
“There is no clear national lawyer who can step in,” says Plescia.
Meanwhile, he said groups like the conservative American Legislative Exchange Council had drafted model laws that were passed by lawmakers across the country.
Corporate groups feel stuck
Companies in Iowa and Kansas are also opposed to the new legislation. The National Federation of Independent Businesses and the Kansas Chamber loudly opposed the law, and the Iowa Association of Business and Industry has stated that the Vaccine Exemption Act is just one additional mandate that could make it especially difficult for Iowa businesses to comply with federal regulations.
“Employers are on this rock and a kind of showdown between the federal and state governments,” says Denise Hill, a lawyer and professor at Drake University who wrote a book on vaccination regulations in the workplace. “And so it’s really a bad place for everyone.”
She says the courts will ultimately decide how federal and state regulations interact with each other.
The Biden administration has issued three mandates. Companies with 100 or more employees must mandate vaccinations or weekly tests. Federal contractors and health institutions must request a vaccination without the possibility of testing.
“To the best of my knowledge, there is nothing that tells an employer not to have an exception. [that] You can’t obey Iowa law, “says Republican Henry Stone, who led the passage of the law in the Iowa House of Representatives.” It shouldn’t get you between a rock and a hard place. “
Stone says he heard from business leaders who say Iowa law works.
However, Hill says that the Iowa law is much broader than the typical employer-based vaccine exemptions, which are aimed at accommodating disabilities and sincere religious beliefs.
“It really takes away the employer’s discretion,” says Hill. “It says they should forego it. It doesn’t mean that they should enter into an interactive placement discussion to see if they can forego it. And that’s really problematic. It goes against federal requirements, in my opinion.” . “
Hill said if the federal government does not accept Iowa waivers, employers could face fines or lose their ability to do business with the government. If companies fire unvaccinated employees to comply with federal regulations, they could be responsible for paying those workers’ unemployment benefits under the new Iowa law.
Iowa Governor Kim Reynolds has joined three multistate lawsuits challenging each of the federal vaccine mandates. The requirement for companies with 100 or more employees is blocked by a court, but it’s not clear what happens to this or the other two mandates.
“Don’t assume the stay will stay in place,” says Hill. “You have to line up your ducks to keep the rules.”
She says advisors and legal teams need to help employers on a case-by-case basis.
“Is it doing what is intended both to enable people to bypass employers’ vaccine mandates and to respond to what they think is excessive by the federal government? And of course that remains to be seen.” Hill says.
Exceptions harm efforts to end the pandemic
If Iowa law allows many people to bypass vaccine mandates, it could affect efforts to end the coronavirus pandemic.
“If we don’t have people who are actually vaccinated, we will continue to have these pockets of people who are not protected,” says Dr. Christy Petersen, director of the Center for Emerging Infectious Diseases at the University of Iowa. “Even if they get sick … there is evidence that they will not be protected very long. And we will just continue to go through cycles of sickness and death within these groups.”
Petersen says vaccination rules in the workplace have been effective and information from previous vaccination campaigns shows that when it becomes easier to leave a mandate, vaccination rates go down, according to Petersen. She says exemptions for child vaccines require signature or proof.
“It turns out that taking an extra step will reduce the likelihood that people will try to use the exemption,” says Petersen. “So every little hurdle means that more people are vaccinated and that more protection is offered across the country.”
Abigail Censky is a political and government reporter for KCUR. Katarina Sostaric is the government reporter for Iowa Public Radio.