Vaccine Mandates and Prohibitions

In Arkansas, state law currently prohibits state and local governments from requiring vaccinations for employees or showing proof of vaccinations to access services.  HB1547, introduced during the regular session by Representative Robin Lundstrum, was signed into law by Governor Asa Hutchinson on April 28 of this year.

Across the county, states are split on how to handle vaccination mandates for government actors.

• Vaccines are mandated for state workers in 19 states. Mandates are banned for state workers in 7 states, including Arkansas, Tennessee, and Texas.
• Vaccines are mandated for health workers in 22 states. Mandates are banned for health workers in 5 states, including Arkansas, Tennessee, and Texas.  Three states, including Oklahoma, have specifically exempted health workers from their overall mandate bans.

Most states have focused on limiting government mandates, but now focus is shifting to debates regarding private employer mandates.  In Arkansas, there is currently no prohibition against private employer vaccine mandates, and many private employers have recently announced vaccination policies.

In early August, Tyson announced it would require all U.S. workers to be fully vaccinated against COVID-19 by November 1.  The company is also offering $200 bonuses to fully vaccinated employees.  Last week, labor unions agreed to support Tyson’s vaccine mandate, and the company announced a variety of new benefits to workers.

In July, Walmart announced vaccination mandates for corporate staff.  The company is also offering a $150 incentive through October 4 for employees working in stores and the supply chain.

With these announcements in Arkansas, and across the county, came pushback from citizens and local legislatures.  Protests against the mandate took place in Bentonville after Walmart’s announcement last month.  Some Arkansas lawmakers are looking to prohibit private businesses from mandating vaccinations.

Currently, Montana is the only state to ban private employers from mandating vaccines.  On May 7 of this year, Montana Governor Greg Gianforte signed a bill that “prohibits discrimination based on vaccination status or having an immunity passport.”  The law, codified in the Montana Human Rights Act, applies to any person, governmental entity, employer, or public accommodation.  However, school districts and day-care facilities are exempted from the law.

Some Arkansas lawmakers are ready to move forward with similar legislation.  SB719, filed by Senator Bob Ballinger on August 5, would create a state recognized right to privacy for vaccination status.  The House and Senate Committees on Insurance and Commerce met jointly with the Senate Judiciary Committee in August to discuss the issue of private employer mandated vaccinations. Lawmakers heard from multiple stakeholders during the meeting, which lasted over 6 hours.  The bill appears to have significant support, with 6 co-sponsors in the Senate and 18 in the House.

Some private companies were hesitant to require vaccinations prior to FDA approval, but more companies are expected to move forward with mandates now that Pfizer’s approval process is complete.

The FDA approval may also reduce avenues for litigation.  Early litigation on the subject focused on the drug having only FDA emergency use authorization instead of full approval.

Aside from FDA approval, employers have other concerns when it comes to mandating vaccinations.  According to recent research from law firm Littler Mendelson, the main concerns employers have regarding vaccine mandates include:

• resistance from employees,
• the potential impact on company culture and employee morale, and
• the possibility of losing employees in a tight labor market.

While private companies currently have the ability to weigh their options and make policy decisions regarding vaccinations that best fit their needs, more state legislatures may follow Montana’s lead in the upcoming months.  Nationally, however, the Biden Administration has been outspoken in support of private companies mandating vaccinations.

The Biden Administration continues to encourage businesses to mandate vaccinations.  In addition, all federal workers and on-site contractors must verify vaccination status or undergo weekly testing and travel restrictions.  In late August, the Secretary of Defense announced mandatory vaccination for all Service members.  In addition, President Biden is expected to sign executive orders this week requiring vaccinations for employees of the executive branch.

Undoubtably, private employer mandated vaccinations will continue to be a hot button issue for the remainder of 2021.  With FDA approval of the Pfizer vaccine, more companies are feeling comfortable moving forward with mandates.  As special sessions are called across the country this fall, state legislatures may take matters into their own hands and limit private employers’ abilities to implement mandates.