Although, to my knowledge, no government entity or employer has actually mandated COVID-19 vaccination, legislation is pending in several states to head off any such attempts. Some of these bills attack mitigation measures like mask wearing as well, or provide religious and other exemptions to COVID-19 immunization. Other, more sweeping, bills tie the hands of public health officials with overly-broad measures going well beyond the current pandemic and exhibiting little regard to what the future may bring.
The vast majority of bills, almost to the point of exclusivity, are sponsored by Republican legislators. As is true of bills weakening or eliminating school immunization requirements, anti-vaccination organizations like the Alliance for Natural Health, which assiduously protects your right to be bamboozled by fringe medical practitioners and their nostrums, are busy lobbying state legislatures to make sure vaccination mandates and the like never see the light of day, or at least permit generous exemptions.
While I don’t believe broad COVID-19 mandates are warranted in our current circumstances, too many of these bills attack sensible public health measures like mask wearing or ban mandates in situations where they may be appropriate, like long-term care facilities. Bills broadly handicapping public health officials without thinking through the consequences are downright dangerous.
Before we get to the pending legislation, let’s look briefly at how current federal law addresses state and private employer mandates. The FDA allows administration of the three COVID-19 vaccines currently available in the U.S. under an Emergency Use Authorization (EUA) issued for each. Per the federal law allowing the FDA to issue EUAs, the Secretary of the Department of Health and Human Services must specify whether individuals may refuse the vaccine and the consequences for that refusal. Here, the FDA has made clear that anyone may refuse a COVID-19 vaccination and requires that this information be disclosed to the public. According to a recent JAMA Viewpoint article by public health and health law experts, “mandating COVID-19 vaccines under an EUA is legally and ethically problematic”.
However, at the end of last year, the Equal Employment Opportunity Commission issued pandemic-related Q&As that “favor a voluntary vaccination approach, but do not expressly prohibit a mandatory policy with appropriate ‘outs’ for disability and religious accommodations.” As best I can tell, the advice was not limited to vaccines with full FDA approval.
Where employees are unionized, a collective bargaining agreement could require bargaining over the implementation of a mandate, or even consent-based vaccination, to avoid violating federal labor laws.
In sum, federal law does not require vaccination of anyone but apparently does not prohibit private-sector employers from mandating employee vaccinations. (Please note: this is an SBM post, not legal advice. Consult a lawyer if you have questions.)
With that, let’s turn to the pending state bills. As noted in my previous post on school vaccination legislation, different states have different abbreviations for legislation. To simply things (for me), I’m going to use whatever combination of letters and numbers the particular state uses with a link to the legislature’s website, where you can find all the details.
Hog-tying public health
Legislators in several states have introduced bills curtailing the authority of health officials to implement mitigation measures in a public health emergency. These take various forms, some disallowing vaccination mandates altogether, others adding that anyone refusing voluntary vaccination in an emergency cannot be quarantined or isolated, while others still create exemptions to vaccination mandates. Some bills are directed only at COVID-19; others cover all immunization mandates. The titles of, and language used in, several bills give us a hint as to their sponsors’ ideological leanings.
Maryland HB 17, the “Consent of the Governed Act”, is an especially ham-fisted and poorly drafted reaction to the state’s handling of the COVID-19 pandemic. Current Maryland law allows the Governor to declare a state of emergency and to issue orders to mitigate that emergency, such as Gov. Larry Hogan’s orders restricting restaurant capacity, mandating mask-wearing, and similar measures.
No matter the emergency or its circumstances, HB 17 limits the duration of any state of emergency to 14 days, with a 14-day extension if approved by a two-thirds majority of the General Assembly, which must convene within 3 days of the order. Oddly, an emergency order cannot apply at all to state legislators or judges and the Governor cannot “threaten or arrest” legislators or judges for violation of an emergency order.
The Governor cannot require
any member of the public to remain indoors, wear a face covering, not congregate or assemble, close or limit capacity of a business, church, or school, or interfere with the right to obtain and try any medical treatment desired for any illness . . . or receive a vaccine or be forced under penalty of law to make any other health decision.
Private citizens would have the right to sue to enforce this proposed law and could get an injunction and treble damages (and attorneys’ fees and costs) if they can prove the emergency order is “unreasonable as applied” to them.
A similar effort to gut public health measures during emergencies is underway in Missouri. HB 1144 tracks the language of a “Right to Refuse” Model Act promoted by the “National Health Freedom Action” organization. As I described in a post last September, this group and its associates spread vaccine and COVID-19 misinformation and support laws shielding quacks, allowing the sale of unpasteurized milk, and otherwise protecting pseudoscience and those who benefit from its commodification.
HB 1144’s sweeping provisions handicap both the state government and individual business owners who try to institute protective measures such as mask wearing and building capacity limitations, giving everyone the right to refuse such measures and imposing absurd conditions on their implementation. For example, a shop owner who wants customers to wear a mask must read aloud portions of the law granting the right to refuse this and other mitigation attempts to each potential customer, give them a written copy of the law, and get a written acknowledgement of its receipt.
In South Carolina, HB 3217 allows anyone to refuse a vaccination offered as “part of any mass immunization project to protect against infectious disease, or to prevent the spread of a pandemic or a contagious or possibly contagious disease”. HB 3511 goes even further, providing that anyone who refuses a vaccination in such circumstances “may not be denied any right or privilege of citizenship”, which is defined to include “shopping”.
In another sweeping measure, South Carolina HB 3526 transfers the authority to declare a state of emergency from the Governor to the state legislature and removes “public health emergency” altogether (and well as other events) from the list of circumstances permitting an emergency declaration. Declared public health emergencies would still be allowed in some circumstances but the power to mitigate them is reduced. For example, an infectious agent, chemical agent, or the like, posing “a substantial risk” of “widespread illness” would no longer be a sufficient reason for a public health emergency, which would be limited to risks of “a significant number of human fatalities” or “a serious economic impact to the agricultural sector, including food supply”. The authority to temporarily isolate or quarantine anyone is completely removed and a court order required.
In North Dakota, HB 1320, which was, fortunately, soundly defeated, would have banned any state vaccination mandate, in any circumstances, and prohibited “making receipt of a vaccine a condition for entry, education, employment, or services”, presumably pre-empting school vaccination mandates along with the rest. It was strongly opposed by school officials and the science-based health community and supported by a North Dakota “health freedom” organization and two chiropractors, among others.
In Oklahoma, a similar bill (SB 223), provides that any state entity, including school districts, cannot “through direct or indirect means, compel or coerce any person . . . to receive any immunization”, seemingly eliminating all school vaccination requirements as well. Likewise, Oklahoma SB 352 prevents any state entity or from compelling or coercing anyone “to undergo any unwanted medical procedure”, including immunizations and face mask wearing, with persons violating the proposed law subject to misdemeanor conviction. (Private employers are specifically excepted.)
In what appears to be an attempt to cover any and all situations that could possibly arrive, Idaho HB 63, prohibits any state or local law or order that mandates “vaccination, immunization, genetic modulation, or inoculation” (or, as the bill refers to it, “forced or coerced vaccination”) in “any state of disaster or emergency or any proclaimed state of extreme emergency, insurrection, or martial law” and prohibits quarantining or isolation of those who refuse vaccination. (I had to look up “genetic modulation“. The science is beyond me but I am curious as to how it would come into play in an insurrection and such.)
With the preamble that a new law is required to “maintain the individual liberty, parental rights, and free market principles of the citizens and businesses of Nebraska”, LB 643 allows anyone to refuse vaccination during a state of emergency declared by the Governor “or anytime thereafter” without punishment, penalty, or “implication”.
A Florida bill (HB 6003) removes the authority of the state Public Health Officer, in a public health emergency, to require quarantine of anyone refusing vaccination and to require vaccination of an individual who poses a threat to the public health when quarantine is unavailable. Kentucky law currently allows the state’s health agency to require vaccination in any area where a pandemic is declared. HB 36 (the “Ensuring Bodily Autonomy and Informed Consent Act”) and SB 37 would repeal that authority.
In Tennessee, under current law, any person’s right to claim a religious exemption from immunizations and medical procedures (presumably including testing) is suspended when an epidemic threatens and an employee’s religious exemption right is suspended when necessary to protect the health of others. HB 10 (which failed in a subcommittee of the Health Committee) and SB 07 would eliminate those suspensions as well as institute blanket religious and conscience exemptions for all immunizations and medical procedures. The bills would also eliminate misdemeanor charges for physicians who fraudulently provide medical exemptions or certificates of vaccination. Specific to COVID-19, Tennessee SB 187 and HB 13 provide that government entities “shall not force, require, or coerce a person to receive an immunization or vaccination for COVID-19 against the person’s will”, although, without a state COVID-19 vaccination mandate, they would not have any authority to do so in the first place.
Washington HB 1006 creates “religious, philosophical, or personal” objections to all state-mandated immunizations, including any that might be required for state and day care center employees, and adds these exemptions to the school-mandated MMR immunization, which is currently limited to medical exemptions.
Virginia HB 2242 prohibits the state from requiring COVID-19 vaccinations and prohibits discrimination based on vaccination status in a number of situations, including health insurance coverage and state employment, where vaccine refusal is accorded the same status as other traditionally protected classes in employment discrimination law, like race, religion, and gender.
Although Wisconsin law permits health officials to mandate immunization in a public health emergency, SB 4 and AB 23 would exclude COVID-19 vaccination from this law. New York A 4269 prohibits mandatory COVID-19 vaccinations as well. In Connecticut, proposed bills prohibit the state from mandating any vaccine that has been given only an EUA (SB 405) and the COVID-19 vaccine in particular (HB 5401). Similarly, Virginia HB 2336 prohibits both public and private entities from requiring any vaccine that is not FDA-approved, presumably including those with only EUA.
Should any state entity mandate COVID-19 vaccination for any purpose, such as employment or school attendance, Washington SB 5144 allows “religious, philosophical, or personal” exemptions. In Virginia, HB 2268 adds a religious exemption to immunizations required by public health authorities during an epidemic as well as removes the suspension of the religious belief exemption for school vaccinations during an emergency or epidemic. Michigan HB 4008 adds medical and religious belief exemptions to immunizations administered during a pandemic, although parents are allowed to refuse consent for immunization of a child on any ground.
Not all bills curtail the ability to act in an emergency. New York A 416 allows the governor, in consultation with state health authorities, to determine “by clear and convincing evidence” that “the health of others is or may be endangered” by an actual or suspected “case, contact or carrier” of a contagious disease which “may pose a significant threat to the public health resulting in severe morbidity or high mortality”. Upon this determination, the “case, contact or carrier” can be detained for at least 3 days, and for up to 60 days with additional due process protections but, in any case, for no longer than they are contagious. The order can be directed at an individual or a group, who can be detained “in a medical facility or other appropriate facility . . . designated by the governor”. In addition to detention, the governor can require quarantine and order testing, vaccination, and treatment, although no medication can be required without a court order.
New York A 2081 adds COVID-19 vaccination to the list of required immunizations for residents and employees of long-term care facilities, with medical and religious exemptions as well as the right to refuse “after being fully informed of the health risks” of refusal.
A number of states have legislation proposed or pending that bar employers from mandating either vaccinations in general, or COVID-19 vaccinations in particular, whether in certain circumstances or by banning them altogether.
Connecticut’s proposed HB 5402 prohibits any employer from requiring proof of COVID-19 vaccination from employees, vendors and customers, presumably including hospitals, long-term care facilities, and the like. It also bans public officials from requiring proof of vaccination as a condition of using some public facilities, like parks.
Mississippi HB 719 (which died in committee) and Wisconsin bills SB 5 and AB 25 would prohibit any employer from requiring that employees be vaccinated against COVID-19, while Kentucky SB 37 and Oklahoma HB 1057 would prohibit employers from requiring vaccination against any disease. All of these bills appear to include hospitals, nursing homes, retirement communities, and similar businesses.
In Minnesota, HF 261 requires that COVID-19 vaccines be made available to teachers and other school employees but says they (and students) can’t be required to take them. Similarly, Missouri HB 838 prohibits public employers from requiring COVID-19 vaccination for public employees, no matter where they work. North Dakota HB 1301, which was defeated, prohibited employers from requiring vaccination of employees, with hospitals, long-term care facilities, and the like excluded, although medical and religious exemptions were allowed. Interestingly, even though the bill also contained protection against liability for the transmission of communicable diseases, it was opposed by the business community, which wanted to retain the right to require employee immunization. Conversely, Oregon SB 451 prohibits immunization requirements for registered nurses and other medical staff as a condition of employment.
Pennsylvania HB 262 bars both private and state government employers from requiring any immunization or “invasive medical test”, defined to include providing tissue or bodily fluid samples (in other words, including COVID-19 testing). Employees can sue for treble damages if they are retaliated against or otherwise penalized for their refusals. Indiana SB 74 grants employees medical, religious and “conscience” exemptions from vaccinations required by an employer and prohibits, upon pain of actual and punitive damages, any discrimination against an employee claiming an exemption. Indiana HB 1488 prohibits employer-required vaccinations if the vaccine has only emergency use approval and bans the employer from inquiring into the employee’s reason for refusing the vaccine.
Given the inevitability of future pandemics and other health emergencies, I worry about how states will manage without the public health tools eliminated by this year’s proposed legislation. Fortunately, some ill-conceived bills have already been defeated. You can help ensure others suffer the same fate by contacting your state representatives.