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Vaccine Passport Pushback Could Spur Bans on Workplace Mandates

April 12, 2021, 9:20 AM

The latest political skirmishes over proof of Covid-19 vaccination as a prerequisite for entering public places or returning to work could spur momentum for bans on employer-imposed mandates.

Republican governors Ron DeSantis of Florida and Greg Abbott of Texas each issued executive orders this month barring companies receiving state contracts or grant money from requiring would-be patrons to display so-called vaccine passports proving they’ve been inoculated against Covid-19. This after New York became the first state to roll out such a system.

While the governors’ orders stop short of specifically barring workplace vaccine mandates, bills pending in a number of state legislatures propose to do exactly that.

“I would predict that there will be measures passed in at least a few states that either restrict employers or restrict the concept of a vaccine passport or other proof of vaccination,” said Lowell Pearson, an attorney at Husch Blackwell LLP in Jefferson City, Mo. He added that governors likely don’t have authority to restrict employer mandates via executive orders.

Proposals to block vaccine mandates, including some targeting private employers, have largely failed or shown little progress in state legislatures in 2021, including bills stuck in Florida legislative committees and measures that were voted down in Montana and North Dakota.

The high-profile passports debate could give such initiatives new life, as evidenced by a new Ohio House bill and a second attempt at banning shot mandates that passed the Montana House on April 6.

“You have a right to live your life in our society,” DeSantis told reporters April 8, reiterating his opposition to vaccine passports. “You can go to a restaurant. You can get on a cruise ship. You can go to a movie theater without the company demanding that you show them your health information. It’s just not necessary to do.”

Other Republican governors have echoed DeSantis’ sentiments, though without taking official action.

DeSantis’ order specifically barred requirements imposed on customers or patrons, but didn’t clearly address mandates imposed on employees. The governor said Florida state legislators are working on a draft to codify his emergency order, but didn’t say whether employer mandates would be addressed.

Abbott’s Texas order arguably could block workplace vaccine mandates imposed by companies with state government contracts, although it’s a somewhat gray area in Abbott’s directive, said Kevin Troutman, a Houston-based attorney with Fisher & Phillips LLP.

State Legislation Pending

Lawmakers in Pearson’s home state of Missouri are considering HB 838—the latest version of which would bar public employers from requiring their workers to get vaccinated or imposing vaccine requirements for entry to public spaces.

State legislatures in Ohio, Oklahoma, and Tennessee, among others, are considering bills that go further than the Missouri measure, proposing a ban on vaccine mandates by any entity including private-sector employers. A similar proposal in Idaho, banning vaccine mandates by any company that contracts with the state government, has cleared the state House and is pending in a Senate committee.

Only the Wisconsin legislature has sent a bill to the governor this year proposing to ban workplace vaccine mandates, and Gov. Tony Evers (D) vetoed it.

Employers generally have legal authority to require that their employees get vaccinations, so long as they adhere to federal laws requiring religious and medical accommodations in the workplace. The Equal Employment Opportunity Commission reaffirmed that authority in December guidance specific to the Covid-19 vaccine.

Nevertheless, few employers have shown interest in mandating vaccines, and many attorneys have advised against it to avoid the legal, logistical, and morale problems that might result—concerns that are complicated by the fact that Covid-19 vaccines have only an emergency use authorization from federal regulators.

Only about 1% of employers surveyed by Littler Mendelson in February said they were requiring Covid-19 vaccines, while 6% said they planned to mandate them once the vaccines were more widely available or once they get full federal approval.

Employers are “tending to do it with education, and persuasion and incentives, not with mandates,” Pearson said.

‘Groundswell’ of Opposition?

Florida’s status as “an 800-pound gorilla when it comes to tourism” could help put down the movement toward vaccine passport requirements in the U.S. before it ever gets off the ground, DeSantis predicted. “You’re seeing a huge groundswell against these.”

New York is the only state to roll out a vaccine passport, the Excelsior Pass, which can be used to control access to businesses and large public gatherings such as Yankees baseball games. At the federal level, President Joe Biden has said the U.S. won’t impose vaccine passport requirements and will leave it up to the private sector to decide whether and how to use them.

Shot passports are gaining more traction internationally, with the passes widely used in Israel already and plans moving forward to implement them for travel within Europe.

Republican governors from Georgia, Missouri, and others including Tennessee Gov. Bill Lee have publicly stated or tweeted their passport opposition since DeSantis issued his April 2 order, followed by Abbott days later. But whether their opposition will extend to blocking workplace mandates isn’t yet clear.

“There’ll be enough states that do it that you’re not going to have any major company” requiring vaccine passports for customers, DeSantis predicted.

Troutman, the Houston attorney, said it may be premature to declare a groundswell of opposition to inoculation requirements—whether in the form of passports or workplace mandates—although he acknowledged it’s difficult to predict what state lawmakers ultimately will decide on the pending proposals.

“I’m not seeing a lot of momentum toward passing bans on these mandates at this point,” he said.

But, Troutman noted, there have been reports about concerns of New Yorkers trying to falsify their vaccine passports in the state’s new system. If concerns about the reliability or security of vaccine passports become more widespread, then these issues could drive politicians to take more substantive action against such mandates, he said.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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