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While the pandemic is slowly fading from the headlines, vaccine legislation continues to be a priority for lawmakers in many states. The flood of proposals and shifting mandates are posing challenges for government affairs and compliance professionals alike and creating a patchwork of requirements for employers operating in multiple states to navigate.
Just a little more than a month into the new year, more than 500 vaccine-related bills have been considered in 47 states, 30 of which have already been enacted in 10 states, according to data compiled by the National Conference of State Legislatures and State Net. Limits on employer vaccine mandates, from expanded exemptions to outright bans, figure prominently in that legislation.
As The Washington Post reported this month, “(T)hree issues...have quickly taken center stage in Republican-led state legislatures: Extending postpartum Medicaid coverage, restricting gender transition care for minors, and rolling back vaccine requirements.” The publication called the vaccine mandate rollbacks “a growing movement that was sparked by the coronavirus pandemic.”
At least 23 states have considered legislation this session dealing with religious and other exemptions for vaccine mandates imposed by schools and other entities, including private employers.
At least 28 states have taken up measures that would prohibit businesses and assorted government entities from requiring that entrants to their facilities be vaccinated.
And perhaps most significantly, at least seven states have considered bills that would establish liability in the event someone gets sick from a vaccine.
Arizona SB 1433; Connecticut SB 463; Missouri HB 336; Oregon SB 657; South Carolina HB 3536, SB 56, SB 891, SB 902; Texas SB 302; and Wisconsin AB 681 and SB 721 all would make an employer liable if they required their workers to get a vaccination and one of those employees suffered a significant injury as a result.
Arkansas SB 8, meanwhile, would hold vaccine manufacturers criminally liable if a patient experienced an adverse event from a shot.
Vaccine legislation isn’t new. More than 500 vaccine-related bills were introduced by 43 states last year, 75 of which were enacted in 31 states, according to NCSL's public health legislation database. And over 800 bills were introduced by 50 states in 2021, with 97 enactments in 38 states. But the number of measures dealing with vaccine access and insurance coverage of COVID-19 vaccinations appear to have fallen off, while the volume aimed at restricting vaccine requirements has remained more steady.
Minnesota even considered legislation in 2021 (SB 1249 and HB 1330) addressing liability of vaccine manufacturers. But it was considerably milder than this year’s Arkansas SB 8, only memorializing the President and Congress to hold vaccine makers liable for design defects resulting in adverse side effects.
Regarded by some as nothing short of one of the greatest miracles in medical history, vaccines have faced skepticism for years, particularly among parents who believe they caused their children to develop autism.
That skepticism has only grown in the wake of the COVID-19 Pandemic, with many on the Right saying they were being forced into taking a vaccine that was rushed into production.
The ensuing backlash ramped-up legislative interest in vaccine policy, particularly among Republicans, helping to fuel the wave of measures that has continued this year, even as the pandemic has slowly receded from the front page.
Public health officials and other experts worry some of these new legislative proposals will further imbed vaccine skepticism into the American consciousness, leading, perhaps, to preventable diseases being spread throughout the population.
Sponsors of these bills, however, argue that they’re just trying to give citizens more freedom over their personal health choices or hold vaccine manufacturers accountable.
“We've got to hold these Big Pharma, these executives, they need to be held with a standard of not just civil penalties—and if they make $10 billion off a drug and have to pay a $500 million fine, I don't know that's right,” said Arkansas Sen. Bryan King (R), the sponsor of SB 8, on a recent radio program. “I think equal justice would say that people like the Sackler family”—the owners of Purdue Pharma, which helped drive the national opioid crisis—“just because they have money and political power and influence, doesn’t mean they need to get out of being criminally charged.”
This continuing stream of vaccine-related bills suggests that employers will need to be vigilant in order to stay in compliance with changing mandates. Further complicating matters for companies operating in multiple states is the potential that requirements could differ from jurisdiction to jurisdiction.
“The states have been reacting to it so differently,” said lawyer Elias Kahn, senior product manager for labor and employment, tax and employee benefits and executive compensation on the LexisNexis Practical Guidance and Analytical Team.
“You have such a wide range, from a state like Montana, which basically said you can’t discriminate at all based on vaccine status (although a federal court ruled healthcare employers in the state must mandate vaccines pursuant to federal law).... Then there are states that are on the opposite end of the spectrum” like Washington that are saying you have to mandate vaccines in certain industries.
Kahn said this requires employers operating in multiple states to be acutely aware of the differences between state mandates.
“It’s this incredible patchwork of laws,” he said. “The employment lawyer simply needs to keep up with them in order to provide good advice.”
Kahn said the issue of vaccine mandates has cooled down since the COVID vaccine was first introduced, but it remains a topic of interest for employers.
“It’s going to remain an issue, particularly because employers are pushing more for in-office work now,” he said. “I don’t think this issue is going away.”
—By SNCJ Correspondent Brian Joseph
Please visit our webpage for more information on the bills mentioned in this article, or to speak with a State Net representative about how the State Net legislative and regulatory tracking solution can help you react quickly to relevant legislative and regulatory changes
So far this year at least 18 states have taken up legislation that would restrict employer vaccine mandates, according to data from the National Conference of State Legislatures and State Net. The measures include exemptions from and prohibitions on such mandates, as well employer liability provisions.