Legislators roll out new vaccine mandate legislation as special session begins — but hurdles remain
Legislators have largely coalesced around a single measure to push back against federal COVID-19 vaccine mandates, but core questions remain unanswered as members returned Monday to Topeka for a special session on the topic.
The historic special session — the first time the Legislature has recalled itself to Topeka — gaveled in as hundreds of anti-vaccine demonstrators flooded the Statehouse halls, packed the galleries and even caucus meetings in an effort to urge a robust response to President Joe Biden's administration.
Kansas and a host of other states have filed lawsuits against the three principal directives, which require employees at large companies either be vaccinated or test weekly, as well as vaccine requirements for federal contractors and health care workers.
But legislators want a safeguard given the vagaries of the legal process.
A new version of the legislation aims to resolve concerns held by both anti-vaccine demonstrators, who flooded a public hearing on policy responses to the mandate en masse, and the business community.
That bill passed the Kansas House on a 78-40 vote at noon Monday, a margin short of the votes needed to sustain a potential veto from Gov. Laura Kelly, though the final version is expected to change by the time it hits the governor's desk.
The Kansas Senate debated its version of the bill until about 2 p.m., but Republican leaders planned to instead "gut and go" with the House bill later in the afternoon. The move would potentially avoid a negotiation between the two chambers.
New provision expands religious exemptions to vaccine mandate
Under the new bill, provisions to expand religious and medical exemptions remain, with an employer unable to question the sincerity of a person's religious beliefs or a note from a physician or other medical professional.
But a new part has been added, featuring language from the federal Equal Employment Opportunity Commission, which allows beliefs that are not traditionally deemed to be religious, such as a moral or ethical objection the vaccine, provided they are as firmly held as those of a Catholic, Muslim or Jewish resident.
This addresses protests from opponents of the bill that it allowed religious believers to not get the vaccine but lacked a so-called conscientious objector clause. And Senate President Ty Masterson, R-Andover, said the goal of lifting the language from federal guidance was to ensure it would work well with the Biden administration mandates.
"It's designed to comply with the federal mandates, in case they are found to be constitutional," Masterson said. "With this, it can coexist.
"We're not saying you can’t have your mandate. But you must honor religious and medical rights."
The matter prompted Rep. Stephen Owens, R-Hesston, to joke during a House Republican caucus meeting that "a lot of people will find Jesus and that is fantastic."
But others say the matter is far from settled, raising concerns it will still put businesses in an uncertain position of having to choose between state and federal law if the vaccine mandates are upheld in court.
"There were just pieces in there that really impacted businesses more than I was comfortable with," Rep. Mark Schreiber, R-Emporia, one of five Republicans to vote against the bill.
Another new addition removes a major target of the state's business community: a provision allowing workers who feel their rights have been violated by the denial of an exemption request to sue their employers, who would have to pay the employee's attorney fees if the business loses the case.
Instead, the Kansas Department of Labor will now be charged with investigating potential violations of the bill, issuing a report and forwarding it to the attorney general's office, who can seek civil damages up to $10,000 for small employers or $50,000 for larger companies.
Still, the Kansas Chamber said in a statement that they maintained their opposition to the bill, saying the group are "not able to support any mandate or penalties on businesses that impacts their ability to make informed decisions on how best to maintain their operations and could lead to unintended consequences."
The changes also did little to pacify Democrats, who appeared mostly in opposition the measure.
"All we're doing is adding some additional regulations and mandates on our businesses," said House Minority Leader Tom Sawyer, D-Wichita. "We're trying to solve a problem we can't solve."
And Sen. David Haley, D-Kansas City, compared vaccine mandates to seat belt requirements. He said both save lives, and the statistics prove it. He also reminded Masterson of the approximate $65,000 cost per day of holding a special session.
"When you’re dealing with individual freedoms and liberties, it’s a small price to pay," Masterson said, eliciting applause from the Senate gallery.
Unclear if Gov. Laura Kelly will sign legislation
It is unclear if Gov. Laura Kelly will sign the legislation should it hit her desk. Kelly has come out in opposition to the federal mandates, but her office hasn't commented publicly on what that means for the fate of the legislation.
Both chambers will also need to resolve a question over whether to provide individuals with unemployment benefits if they lose their job for refusing to get the vaccine. A Senate version of the bill includes that provision, while the House version doesn't and House leadership said their hope is the exemption bill would prevent individuals from losing their jobs.
Conservative members also were expected to bring amendments to make the bill go farther, saying they want a stronger stance against the federal government. Rep. Randy Garber, R-Sabetha, in a floor speech even advocated for Ivermectin and hydroxychloroquine to treat COVID-19, though there is no medical evidence the treatments are effective.
"Where do government rights stop and human rights begin?" Garber said. "If you are going to take a shot that you don't know what it is going to do to you, then I have no problem with that. But I do not advocate government telling us what to do in this area."
Sen. Robert Olson, R-Olathe, noted breakthrough cases of COVID-19 among people who have been vaccinated.
"This mandate is not going to ensure anything," he said.
Olson also purported that vaccines cause "a lot" of deaths, questioned the circumstances of President John F. Kennedy's assassination and suggested that wearing masks to prevent the spread of the virus will cause COPD cases 20 years from now.
The Kansas Department of Health and Environment reported 2,431 new cases, 37 new hospitalizations and nine new deaths from COVID-19 since Friday. Kansas has now reported 6,643 deaths from COVID-19, including six children, since the start of the pandemic.
Trends show the coronavirus pandemic is worsening in Kansas amid a stagnant vaccination rate.
'We will certainly have a bog'
Masterson implored members during a caucus meeting to focus on Kansans who could be caught in the "crosshairs" of the federal mandates, not disparate questions related to the vaccine and its efficacy.
But he acknowledged members could get off track.
"I expect we will certainly have a bog," he said in an interview before taking the Senate floor.
The Senate rejected a proposed amendment from Sen. Alicia Straub, R-Ellinwood, that she said would make COVID-19 vaccination status a protected class under Kansas anti-discrimination law.
Masterson said "the goal is laudable," but challenged whether the amendment is germane, despite an earlier promise that amendments would be allowed.
"People will know who stood in support of their individual liberties," Straub said, appearing on the verge of tears as her amendment failed to be discussed.
The proposals are unlikely to appease the more ardent anti-vax constituents who attended a rally at the rotunda Monday morning.
Karen Rush, a residence hall custodian at the University of Kansas, claimed the vaccines didn't go through trials and proper testing while denying that the Food and Drug Administration has fully authorized the Pfizer vaccine.
Rush said she wants the legislators to stop the mandates, but at the very least, she wants to get unemployment.
"For them to deny us any kind of assistance based on the fact that we won't get this particular vaccine, I really think is wrong, but they're going to fire me if I don't," she said, adding that she previously contracted COVID-19 and believes she is now protected by antibodies.
Donna Herman, of Wichita, said Nov. 12 was her last day as a physical therapy assistant after 35 years at Ascension Via Christi because she refused the COVID-19 vaccine and the flu shot. She also questioned the efficacy of vaccines and of masks.
"They said that I was a health risk," she said.
Herman said she wants to be able to get unemployment benefits because it will be difficult for her to find a new job in the medical field when most establishments are mandating the vaccine.
"It's funny they didn't accept religious exemptions, isn't that kind of backwards," Herman said of Ascension, which is a religious health system. She said she is OK with the government blocking the religious organization from mandating vaccines.
"I am informed and I can make my choice," she said. "I'm not listening to mainstream media. ... I don't believe some of the narrative that's being put out there, that this is needed, that this vaccine is needed."
Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at firstname.lastname@example.org or by phone at 443-979-6100.