Employers considering Covid-19 vaccination plans for their workforces have another potential strike against the option of requiring inoculations—a growing number of state legislative proposals aimed at banning vaccine mandates. In one unusual case, a Minnesota lawmaker proposed 10 years in prison for any government official or business owner who forces vaccinations.
State lawmakers are floating proposals aimed at preventing government agencies, employers, or schools from forcing people to get the Covid-19 vaccine, although none of the bills has succeeded yet.
Legislation that would ban or limit vaccine mandates has been pre-filed for 2021 sessions in Florida, Kentucky, Missouri, South Carolina, Tennessee, and Washington state. Similar proposals have been floated for ongoing 2020 sessions in New Jersey and New York. A competing proposal in New York would make the Covid-19 vaccine mandatory statewide.
Employers generally have the authority to require workers to get vaccinations and terminate them if they refuse, as long as the employers satisfy federal requirements related to accommodating religious objections or medical conditions that might qualify as disabilities. The U.S. Equal Employment Opportunity Commission updated its guidance Wednesday on employers and vaccine mandates in light of the newly approved Covid-19 vaccine.
Most states don’t restrict employers’ ability to mandate vaccines, although an unusual Oregon law does prohibit health-care employers from requiring vaccinations as a condition of employment, noted Lindsay Ryan, a labor and employment attorney at Polsinelli in Los Angeles.
“There’s nothing that I can see at least from agency guidance or federal law that would stop other states from doing the same,” she said, noting that she’s generally advising companies to encourage and give workers incentive to get vaccinated rather than mandating it, as a way to avoid hurting employee morale.
As employers weigh possible workplace safety benefits of vaccine mandates, lawyers and health experts have pointed out a wide range of legal and practical headaches that would come with requiring their workers to get immunized.
A handful of state proposals specifically target employer requirements, while others focus on limiting local and state governments’ power to mandate vaccines.
Florida state Rep. Anthony Sabatini’s (R) proposal, H.B. 6003, falls into the latter category, although he said he expects lawmakers also could explore limiting employer mandates during the 2021 session, which starts committee hearings in January.
“Vaccines are generally a personal medical decision. It’s not something the government should punish you for or force you to take,” Sabatini said.
“The issue of employee-employer relations is much more complex, and we need to have a conversation about it first,” he said. “Personally, I believe employers should not be able to mandate that their employees receive a vaccine in most occupations.”
Minnesota Rep. Eric Lucero (R) took an especially aggressive approach to the issue. His proposal, H.F. 41, would have banned any government official or business from mandating Covid-19 vaccines, with violations treated as a felony punishable by 10 years in prison.
The bill died in committee during a brief December special session. Lucero didn’t respond to an email request for comment.
South Carolina lawmakers have offered two proposals on the topic for the state’s 2021 session. One, S177, would block private employers as well as state health officials from mandating the Covid-19 vaccine, while declaring that it should be purely voluntary. The other, H3126, would bar state agencies and municipalities from accepting federal funds to enforce any “unlawful” federal mandate related to face masks or the Covid-19 vaccine.
Fight It or Keep Quiet?
It’s hard to predict whether the proposals will become law, and whether employers or industry groups will devote any energy to fighting these proposals in state legislatures as a means of preserving their legal option to mandate vaccines, Ryan said.
“So many are very much on the fence about whether they should mandate the vaccine,” she said.
Tim Goodrich, who heads state government relations for the small-business group National Federation of Independent Business, said he isn’t hearing about vaccine mandates among the top concerns or legislative priorities for NFIB members in the year ahead.
“They’re focused on meeting the requirements and regulations they have now and keeping their employees and the public safe,” he said. “What we have heard is they’re very hopeful and optimistic people will get vaccinated and that will allow them to reopen.”
If state lawmakers sense there’s widespread reluctance to taking the Covid-19 vaccine, that could motivate broader support in state legislatures for bills that ban mandates, said Kevin Troutman, an attorney with Fisher Phillips in Houston and member of the firm’s Covid-19 task force.
On the other hand, lawmakers will have to consider the severity of the pandemic in deciding how to handle these anti-mandate proposals, he added.
The virus has “wreaked havoc on the economy and has killed over a quarter million people,” Troutman said. “Are the legislatures going to stand in the way and say, ‘No, you can’t do that’ to employers?”