Vaccine Legislation and Mandates
State Vaccine Legislation
(Updated: January 21, 2022)
Where Things Stand
ATTENTION: *** House Bill 1001 takes on added significance since the U.S. Supreme Court has struck down the federal vaccine/testing mandate for employers with 100 or more workers. The federal rule had dictated that states would have to abide by the stricter state requirements. Now, what gets passed in HB 1001 has a clear path to becoming state law. ***
In the Indiana General Assembly, on January 18, 2022, the House of Representatives passed HB 1001 on a 58-35 vote. House Bill 1001 could restrict businesses’ ability to require the COVID-19 vaccine for employees, if they choose to do so. Those opposed were a combination of (primarily) Democrats and (select) Republicans believing this was a bad idea for public health and/or an intrusion on businesses coupled with another group of select Republicans who thought this measure didn’t go far enough in protecting individual freedoms.
Of note: Previously in committee, language was added that says employees who are terminated for not getting vaccinated or not following the testing guidelines would be eligible for unemployment compensation. As that provision was initially written, the employer would have their unemployment insurance taxes go up to cover those benefits. Subsequently, on second reading, that was amended on the floor – via Rep. Dan Leonard (R-Huntington) – to take out the employer-specific penalty, but it still says that these employees can draw unemployment benefits; that is not what the unemployment system is designed to do.
Ironically, the key driver behind this bill was learning of health care workers who were concerned about being terminated for not being vaccinated. But while the U.S. Supreme Court recently struck down the Biden administration’s vaccine requirement for employers with 100 or more employees, the Court maintained the mandate for health care workers. So that would supersede whatever state law is made on this matter and those health care employees who prompted this legislation cannot be aided by this bill. That begs the question why it would even make sense to move forward with the related provisions at the state level. The Indiana Chamber doesn’t think it does.
We will continue to push for more positive modifications to the bill to make it as palatable as possible for employers. Amendment details and overall notes from the latest action:
- Testing: Employers can seek what likely will be a partial reimbursement (up to $50) for COVID test costs from the state (Department of Workforce Development) until June 2023.
- Exemptions: Essentially, if an employee asks for either a medical exemption (with a note from a health care provider) or religious exemption, the employer is obligated to grant it – with no questions asked. However, an exempted employee can be required by the employer to undergo COVID-19 testing. If the employee refuses, the employee can be terminated.
- Definition of employee: Expands to now include student interns and independent contractors. Adds provisions excluding federal contractors and out-of-state workers.
- Unemployment benefits: Guarantees unemployment benefits for those who refuse the COVID-19 vaccine and are forced to resign/are fired.
- Employer penalties: Companies pay a UI rate based on how many former employees claim benefits; thus this new language would essentially penalize employers for firing workers who refuse to follow their vaccine and/or testing requirements. Representative Dan Leonard (R-Huntington) said he wants to come up with another method for penalizing employers that do not comply with HB 1001 provisions. He opposes using the UI system because it will not impact employers equally. For example, those already paying the highest UI rate would not see a penalty at all.
- Definition of natural immunity: Clarifies how someone qualifies for natural immunity exemption, which is by antibody testing.
- State emergency: Adds provisions for temporary licensing of emergency medical personnel. Also deletes the cut-off date for SNAP benefits to allow continued receipt of federal monies (a future date down the road may be inserted); this was a Rep. Ryan Hatfield (D-Evansville) amendment that Rep. Jerry Torr (R-Carmel) spoke in favor of and ultimately passed.
Previously, a public hearing on the measure took place in the House Employment, Labor and Pensions Committee on December 16, 2021. The Indiana Chamber, on behalf of the business community, testified in strong opposition.
All About HB 1001 | Fact Sheet (updated)
Employers that have vaccine mandates would have to foot the bill for COVID-19 testing for workers who opt to not get vaccinated. One test could cost $150, so the financial burden would quickly add up. The expanded religious exemption means many more people are likely to claim it. At issue, is the state language does not have the same exception that exists in federal law for employers that try to reasonably accommodate the religious exemption but determine the accommodation would be a significant disruption to their business activities.
With these two provisions, HB 1001 strongly discourages employers from continuing or implementing a vaccine mandate because it puts them at a disadvantage economically and from a productivity standpoint. This approach directly contradicts what the state has been promoting for months and months regarding vaccines and asking the business community to respond and act.
Ideally, state government – as well as federal – would have stayed out of what businesses can and cannot do regarding vaccine mandates for their workers, visitors and patients. Employers are in the best position of knowing what’s needed for the safety of those in their workplace.
Federal Vaccine Mandate
(Updated: January 21, 2022)
Supreme Court Blocks Federal OSHA Requirement!
LATEST: The U.S. Supreme Court has struck down the emergency temporary standard (ETS) from the Occupational Safety and Health Administration (OSHA) requiring vaccine/testing requirements. The vote was 6-3, with the six conservative justices all voting against. However, the Court ruled in favor of the Centers for Medicare and Medicaid Services’ interim final rule for health care workers in nursing home facilities and institutions that receive federal Medicare and Medicaid monies. This vote was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberal justices.
Commentary From Indiana Chamber President Kevin Brinegar:
“We’re relieved for Hoosier employers that the U.S. Supreme Court has struck down OSHA’s emergency temporary standard that would have required certain employers to mandate vaccines or testing. That was a clear case of federal overreach and a blatant attack on employers’ rights.
“The Indiana Chamber was adamantly opposed to the federal government weighing in and telling employers that they would have to require vaccinations and/or testing. We think it was particularly onerous that the OSHA rule would have required employers to fire employees who refused to either get vaccinated or regularly test for COVID-19. It’s not the federal government’s place to get involved in personnel decisions and tell employers who to fire or when they need to fire people.
“The record keeping requirement also would have been such an additional burden and detraction from core business operations, which have already been hit hard the last two years. And the threat of a $14,000 fine per violation was a transparent strong-arm tactic.
“But it wasn’t all good news today from the Supreme Court. We were disappointed that the Court upheld the federal government’s vaccine mandate for most health care workers. Because again, that’s dictating employee policy to employers that know their workplaces and workforce best.
“We are now hyper-focused on the related activity at the Indiana General Assembly. What’s in House Bill 1001 becomes all the more critical now that the state law will be the law of the land with no federal mandate. As currently written, the legislation makes it virtually unfeasible for employers to continue with or implement a vaccine requirement if they choose to do so. The Indiana Chamber will certainly be redoubling its efforts to try to eliminate any interference from state government for those employers that want to take that step.”
NEW: On January 21, 2022, a judge blocked the federal worker mandate nationwide.
Questions?
Please reach out to Jennifer Pferrer, executive director of the Wellness Council of Indiana at (317) 264-2168 or jpferrer@indianachamber.com, or Kevin Brinegar, Indiana Chamber president and CEO, at (317) 264-6882 or kbrinegar@indianachamber.com.
