Pulse of GOP Shot Mandate Pushback Weaker as Virus Risk Recedes

Efforts to restrict workplace vaccine mandates have arguably less momentum among state lawmakers after courts largely blocked federal shot requirements, but a few GOP-led legislatures are still moving toward limiting the workplace rules.

A new Indiana law, which Gov. Eric Holcomb (R) signed March 3, requires employers that mandate a Covid-19 vaccine to grant workers exemptions that are potentially broader than those required by federal law. Similar bills have passed one chamber each in Arizona and South Carolina and are awaiting votes in the second chamber.

The bills follow the pattern of new laws enacted last year by roughly a dozen states, stretching from Florida to Utah. Many of those were enacted late in the year as part of a Republican backlash against President Joe Biden’s proposals to force employers to require immunizations and/or routine Covid-19 testing for their employees—creating a potential conundrum for employers trying to figure out how to comply with both, if and when the federal rules didn’t directly override the state measures.

A flurry of litigation led to courts blocking Biden’s vaccine rule for federal contractors and shot-or-testing rule for other large employers—that latter effort subsequently being abandoned by the federal Occupational Safety and Health Administration— somewhat defusing the opposition among GOP-majority state legislatures.

“The wind is out of the sails in many states,” said Bob Robenalt, a labor and employment lawyer with Fisher & Phillips LLP in Columbus, Ohio. He attributed that not only to the court decisions blocking Biden’s federal action but a movement among employers toward voluntarily ending their vaccine mandates as the pandemic recedes.

“Because of that, there’s a lack of any kind of real urgency to push these through,” Robenalt said.

In Ohio, for example, legislation to largely ban workplace vaccine mandates passed the state House in November before stalling in the Senate, thanks to business community opposition. The bill hasn’t shown signs of movement in 2022, Robenalt said.

“There’s always been a strong belief on the part of the business community that they do not want the federal government or the state government to tell them what to do in these cases, whether it’s to mandate or restricting them from mandating,” he said.

Expanded Exemptions

Federal law requires employers to offer exemptions from workplace vaccine mandates. Employers must accommodate medical conditions that could count as disabilities under the Americans with Disabilities Act as well as sincerely held religious beliefs under Title VII of the Civil Rights Act.

The new Indiana law—like laws enacted last year in Alabama, Arkansas, and Florida—spells out a broader range of exemptions.

Indiana employers also must exempt workers from a Covid-19 vaccine mandate if they have antibodies against the virus due to a previous infection. In Alabama and Florida, the laws bar employers from firing any employee who submits a completed exemption form, whereas federal law gives employers discretion in deciding whether and how to grant accommodations.

The pending Arizona bill would make it a crime for employers to deny a religious accommodation request unless it would create undue hardship for them. The state Legislature passed broader legislation on vaccine exemptions last year via its budget process, but a court blocked it on procedural grounds.

That Arizona bill appears to be stalled and likely faces stiff opposition from the business community over its criminal violation language, said Denise M. Blommel, a labor attorney in Scottsdale, Ariz.

“This Covid backlash, if you will, against masking and vaccines is kind of dying down,” she said. “I really feel that the legislature has moved on to other things.”

A South Carolina vaccine exemptions bill is awaiting a Senate floor vote after getting committee approval March 1 and passing the House in December. It would stipulate an employee’s medical or religious exemption request “must be honored.” Like the new Indiana law and measures in other states, the bill also says a person who’s fired for refusing a mandated Covid-19 vaccine isn’t disqualified from getting unemployment benefits.

Montana took the most aggressive approach to blocking workplace vaccine mandates. In a law enacted in May 2021, the state banned discrimination on the basis of any vaccination status, not just for Covid-19.

Tennessee also largely banned Covid-19 shot mandates last year by barring employers from requiring a worker to disclose their vaccine status—but with exceptions for employers that are federally required to mandate vaccines.

In Texas, Gov. Greg Abbott (R) largely banned vaccine mandates by executive order in October, although for health-care employers, the federal Centers for Medicare and Medicaid Services’ shot mandate overrides Abbott’s order, said Mini Kapoor, a workplace safety attorney with Haynes & Boone LLP in Houston.

“Generally Texas employers are not mandating vaccination (unless the workplace is subject to the CMS rule),” she said by email, adding that employers are using other strategies to discourage virus transmission such as keeping some workers remote, using masking and physical distancing, and adopting routine Covid-19 testing.

Like last year, some state legislatures are pursuing bans on Covid-19 immunization requirements at government agencies and public schools without limiting private-sector employers, as with legislation that passed the Georgia Senate on March 4.

Fired, Frustrated in Indiana

Indiana woman Robin Clark told a state Senate panel in February that their then-proposed new law wouldn’t provide enough protection for workers who choose not to get the Covid-19 vaccine. Clark told the lawmakers she’d been fired from her process engineer job at the drugmaker Eli Lilly & Co. in November for refusing to get vaccinated after being denied both medical and religious exemptions from the company’s vaccine mandate.

The Indiana law largely exempts some employers, including federal contractors and health-care employers, if federal rules require vaccines for their employees. The new law also lets employers require twice-weekly testing of employees who opt out of the vaccine—a provision that Clark said is unreasonable, particularly for people who have shown they have antibodies from a prior infection.

Eli Lilly, headquartered in Indianapolis, declined to comment on any individual employee incidents.

“We believe the COVID-19 vaccination helps keep our employees, families, communities, and customers safe and healthy, and ensures we can continue providing life-saving medicines for more than 45 million people around the world,” spokeswoman Molly McCully said by email.

Clark told the committee that the company “who has never seen me as a patient, decided that they knew better and ruled against my doctor’s suggestion.” She remains unemployed and said all her job interviews lead to a question about why she left her previous position.

“I have not yet heard back from anyone after telling them that I was terminated for not being vaccinated,” she said. “Discrimination is going on and we need protection.”