Republican lawmakers across the country look determined to take on the Biden administration’s insistence that employers require their workers to get vaccinated against COVID-19.
The Kansas legislature meets in special session starting Monday to engage in battle with the federal government over the vaccine mandates. But courts will likely have the final say on whether the mandates are legal, and some worry such bold action could further atrophy the state’s ability to respond to public health crises and could put employers in a legal quandary.
Last week, the Occupational Safety and Health Administration paused enforcement of its own temporary emergency standard requiring companies with 100 employees or more to mandate that workers either get vaccinated or submit to regular testing by Jan. 4, 2022.
Now that the rule is in legal limbo, it’s unlikely the Republicans who dominate the legislature in Kansas will abandon plans to give workers the freedom to dodge the mandates.
“We’re not going to let the Biden Administration force businesses to play God or doctor and determine whether a religious or medical exemption is valid or not,” Republican Senate President Ty Masterson said in a statement announcing the session. “We’re going to trust individual Kansans.”
Throwing everything against the wall
Kansas’ drafted legislation mirrors a new law passed in Iowa that expands an individual’s ability to refuse the vaccine and keep their job — or, get unemployment benefits.
Conservative lawmakers in Florida, Iowa, Kentucky, Tennessee, Wyoming and North Dakota have already completed special sessions and passed bills aimed at nullifying new federal mandates.
Lawmakers in Florida passed a bill that would fine businesses $10,000 per violation if they didn’t offer a number of exemptions to their employees. The governor in Wyoming signed only one of the 20 bills that were written during the special session — a law that gives his office $4 million dollars to challenge federal vaccine mandates.
The new Iowa law directs employers to waive vaccine requirements for any workers who say they believe the vaccine would hurt their health or wellbeing or that of someone they live with, or if they say it would conflict with their religion. And they don’t need to provide any proof. Five of the states, including Kansas and Iowa, will elect governors next year.
State lawmakers in Kansas passed a bill earlier this year modifying the Kansas Emergency Management Act to shift power away from local public health officials and the governor and toward elected county commissioners.
Yet even if the federal mandate is struck down, new state laws making changes to religious exemptions in Kansas could transform the legal and public health systems for years to come.
“It seems like the bills are drafted to let the exemptions swallow the rule,” says Sharon Brett, legal director of the Kansas chapter of the American Civil Liberties Union.
Brett says there’s no freedom of religion provision in the First Amendment that allows a person to put another person in danger by practicing their religion.
If employers have incentives to skimp on verifying the sincerity of an employee who invokes a religious exemption, Brett says that would mark a fundamental change.
“It basically gives a two-tiered system of justice,” Brett says, “where the religious rights of people in free society are upheld over public safety.”
Schools could be affected
New laws strengthening religious exemptions for COVID-19 vaccines could also wind up undercutting laws on the books requiring vaccinations for school-aged children.
“It sets a precedent,” says Dr. Marcus Plescia, the chief medical officer for the Association of State and Territorial Health Officials. “It’s particularly concerning for childhood vaccinations.”
He cites previous national measles outbreaks where some people garnered religious exemptions and remained unvaccinated. In cases like that, Plescia says, public health officials have often been able to lobby religious leaders to convince them of the good vaccines would do in their communities.
But in this case, he said some of these religious exemptions “aren’t really something that religions themselves are even calling for.”
State and local health officials face this political and legal fight when they’re already besieged by the pandemic. That’s made it harder to campaign against new laws that could have far-reaching effects on a range of vaccinations.
“There’s not a clear sort of national advocate who can step in,” Plescia says.
Meanwhile, he said groups like the conservative American Legislative Exchange Council have drafted model legislation adopted by legislatures across the country.
Business groups feel stuck
In Iowa and Kansas, business groups are also opposed to the new legislation. The National Federation of Independent Businesses and the Kansas Chamber vocally opposed the legislation, and the Iowa Association of Business and Industry has said the vaccine waiver law is just an additional mandate that could make it especially difficult for Iowa companies to comply with the federal rules.
“Employers are in this rock and a hard place between the federal government and the state government kind of showdown,” says Denise Hill, an attorney and Drake University professor who wrote a book about workplace vaccine mandates. “And so it’s really a bad place to be for everyone.”
She says the courts will ultimately determine how the federal and state rules interact with each other.
The Biden administration has issued three mandates. Companies with at least 100 employees have to require vaccination or weekly testing. Federal contractors and health care facilities have to require vaccination without a testing option.
“To my knowledge, there’s nothing that tells an employer that they cannot take exemptions, [that] they cannot follow the Iowa law,” says Republican Rep. Henry Stone, who managed the bill’s passage in the Iowa House of Representatives. “It shouldn’t put them between a rock and a hard place.”
Stone says he has been hearing from business leaders who say the Iowa law is working.
But Hill says the Iowa law has much broader language than the typical employer-based vaccine mandate exemptions aimed at accommodating disabilities and sincerely-held religious beliefs.
“It really takes away the discretion from the employer,” Hill says. “It says that they shall waive this. It doesn’t say that they shall enter into an interactive accommodation discussion to see if they can waive them. And so that’s really problematic. It does, I believe, conflict with what the federal requirements are.”
Hill said if the federal government doesn’t accept Iowa’s waivers, employers could face fines or lose their ability to do business with the government. If companies fire unvaccinated employees to follow the federal rules, they could be on the hook for paying for those workers’ unemployment benefits under the new Iowa law.
Iowa Gov. Kim Reynolds has joined three multi-state lawsuits challenging each of the federal vaccine mandates. The requirement for companies with at least 100 employees is being blocked by a court, but it’s not clear what will happen with that or the other two mandates.
“Don’t assume the stay is going to stay in place,” Hill says. “You need to get your ducks in a row to come into compliance.”
She says advisors and legal teams will have to help employers on a case-by-case basis.
“Does it do what’s intended both in terms of allowing people to work around vaccine mandates of employers as well as kind of respond to what they think is an overreach by the federal government? And that, of course, will remain to be seen,” Hill says.
Exemptions hurt the effort to end the pandemic
If the Iowa law does end up allowing a lot of people to avoid vaccine mandates, it could hurt efforts to end the coronavirus pandemic.
“If we don’t have people actually get vaccinated, we’re going to continue to have these pockets of people who aren’t protected,” says Dr. Christy Petersen, the director of the Center for Emerging Infectious Diseases at the University of Iowa. “Even if they have gotten sick … the evidence is that they don’t stay protected for very long. And we will just continue to go through cycles of illness and death within these groups.”
Petersen says workplace vaccine mandates have been effective and information from past vaccine campaigns shows that making it easier to get out of a mandate drives down vaccination rates, according to Petersen. She says exemptions for childhood vaccines have required getting a signature or showing some kind of proof.
“It turns out that that one extra step does make it so that people are less likely to try to use the exemption,” Petersen says. “So any small hurdle does lead to more people getting vaccinated and providing greater protection across the state.”