State Lawmakers' Anti-Vaccine Efforts May Prove Mostly Symbolic

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts.

When the Republican-dominated Wyoming legislature met last month to fight federal COVID-19 vaccination rules, it drew a crowd. That first day, people opposed to the federal rules crammed into the House and Senate galleries, filled two overflow rooms and gathered on the steps of the Capitol. 

State residents who traveled to Cheyenne fear taking a relatively new vaccine and don’t want to lose their jobs for refusing the shots, said Kristy Tyrney, the head of Wyoming Health Freedom, a grassroots group that rejects vaccine requirements.

“Having your job held over your head is very scary,” she said. She added that many attendees also want access to medicines such as ivermectin and hydroxychloroquine, which federal regulators say shouldn’t be used to treat the virus.

The scene in Wyoming played out across more than a dozen red-state legislatures in recent weeks as Republican lawmakers and governors pledged to fight President Joe Biden’s new immunization rules. Since September, at least 14 GOP-controlled legislatures have debated bills that would undermine vaccine mandates and passed at least 13 new laws, by Stateline’s count.

Many of the new anti-vaccine mandate laws are either symbolic or vulnerable to federal preemption, or in some cases both. Some have provisions that align with federal regulations, such as sections that say people can reject vaccinations for religious reasons.

“It’s important to recognize that some of it is performative,” Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University’s law school, said of state anti-mandate laws. “A lot of it is performative.”

The laws could, however, help rally the GOP base ahead of the 2022 midterms and have a chilling effect on businesses that want to go beyond federal requirements. The Walt Disney Company, for example, has temporarily paused its mandate that all its Florida workers get vaccinated, citing a new state law and litigation over the federal rules. 

Biden earlier this fall announced plans to require federal workers, federal contractors and most health care workers to be vaccinated against COVID-19, and to require businesses with at least 100 employees to ensure workers are either vaccinated or regularly tested for the virus. The administration announced 95% of federal workers were in compliance by the Nov. 22 deadline.

Meanwhile, legislatures in recent weeks have reconvened in Florida, Kansas, Tennessee and Wyoming at least partly to fight vaccination mandates, while anti-mandate debates hijacked special session and end-of-session agendas in other red states.

In Wyoming, lawmakers filed at least 20 bills and passed only one, which sets aside $4 million to fund Republican Gov. Mark Gordon’s existing lawsuits against the federal rules. Idaho lawmakers considered 30 bills but passed only a joint resolution stating the legislature’s opposition to vaccine mandates.

In Florida, lawmakers approved and Republican Gov. Ron DeSantis signed four bills which, DeSantis promised, will ensure nobody loses their job for refusing a COVID-19 vaccine. A new Utah law allows people to opt out of workplace vaccinations for personal reasons.

Legally speaking, state lawmakers can’t do much to stop the Biden plan. A court ruling earlier this month temporarily halted implementation of the federal Occupational Safety and Health Administration rule for businesses with at least 100 workers, but federal law will supersede state law if the federal rules are upheld in court.

Some GOP lawmakers may be filing bills without fully understanding how state and federal law interact, said Michael Duff, an employment law expert at the University of Wyoming College of Law. “Many of the people that are doing this don’t understand federalism,” he said, “and they don’t understand the boundaries of what you can and can’t do.”

Public health experts worry that making it easier to refuse COVID-19 vaccines will make it harder to fight the virus, which has claimed over 770,000 American lives and could mutate into a deadlier variant if left unchecked. And Democrats argue that sparring over vaccine mandates is a waste of time.

“We need to stop fighting about perceptions of rights being taken away and start focusing on how we can actually put resources and energy toward ending the pandemic,” said Utah Democratic Rep. Jennifer Dailey-Provost. “I think we’re just spending all of our time and energy fighting the wrong fight.”

Some Efforts Fall Flat 

In some Republican-controlled states, lawmakers failed to pass significant anti-mandate bills this fall.

In Texas, a bill that would have banned state agencies, colleges and K-12 schools from requiring COVID-19 vaccines and allowed workers to opt out of employer-imposed requirements for “reasons of conscience” went nowhere. It was opposed by major business groups and advocates for people with compromised immune systems.

The Texas Association of Business opposed provisions that would have exposed companies to lawsuits from unvaccinated employees, said Glenn Hamer, president and CEO of the industry group. “That’s where the business community unified and said, ‘This would be a very bad move for the state of Texas.’” 

Hamer said his organization nonetheless wants businesses to be free to make their own vaccination decisions and opposes the Biden vaccination plan. His group didn’t take a position on an October executive order by Republican Gov. Greg Abbott, which forbids any entity in Texas from requiring someone who opposes COVID-19 vaccines for personal, religious or medical reasons to get the shots.

“Those guardrails were guardrails the governor felt was important,” Hamer said. 

An anti-mandate bill in Wyoming also failed after facing opposition from businesses and business-friendly GOP lawmakers.

“I’ve never seen an overreach by state government to regulate business as egregious as this is,” said Wyoming state Sen. Drew Perkins, a Republican, during debate on a bill that would have broadened COVID-19 vaccine exemptions, fined businesses $100 a day for requiring the vaccines and made businesses pay severance to workers fired for refusing immunization.

An Idaho Senate committee killed three anti-mandate bills over concerns that they were too vague, the Idaho Capital Sun reported. For instance, lawmakers tabled a bill that would have added vaccine-related injuries to the state’s workers’ compensation law because the bill didn’t define what would qualify as an injury.

One of the four new Florida laws requires DeSantis to make plans for a state occupational safety agency—a head-scratching attempt to thwart federal law, as state-level worker safety oversight systems must follow federal OSHA rules. 

Still other laws, or provisions of laws, offer support to vaccine skeptics rather than aiming directly at the federal rules. Tennessee and Iowa passed laws allowing people fired for refusing COVID-19 vaccines to qualify for unemployment benefits, for instance.

Playing to the Base

New laws in at least eight states—Arkansas, Alabama, Florida, Iowa, North Dakota, Utah and West Virginia (plus the Texas executive order)—make it easier for people to refuse COVID-19 vaccine requirements at work, such as by citing personal reasons or a prior COVID-19 infection. The Florida law imposes fines on businesses that require vaccinations.

Some of the new laws include exemptions for federal contractors and health care workers subject to federal vaccination requirements. Others clarify that businesses can require unvaccinated employees to be regularly tested for COVID-19, as the federal OSHA standard allows.

If the Biden regulations are upheld in court, they will supersede conflicting state laws. Still, the new laws put employers subject to conflicting state and federal vaccination rules in a tricky spot, legal experts say.

The confusion was enough to lead the Walt Disney Company, a major employer with 77,000 workers in Florida, to halt its vaccination requirement for those employees last week. The company said that more than 90% of its Florida workers have been vaccinated and that it would require unvaccinated employees to wear masks and follow social distancing protocols, the Orlando Sentinel reported.  

It’s possible businesses that want to impose strict vaccination mandates will sue states over the new anti-vaccine mandate laws, said Jen Piatt, deputy director with the Network for Public Health Law’s Western region office, an Edina, Minnesota-based organization that advises policymakers on public health law issues. 

She pointed to Norwegian Cruise Line Holdings’ successful challenge to a Florida law banning the company from requiring passengers and crew members to show proof of vaccination. “I can see businesses trying to bring similar challenges like that,” Piatt said. 

For many Republican governors and lawmakers, it’s politically important to fight vaccination mandates even with measures that are symbolic or rest on uncertain legal ground.

DeSantis underscored his message to the GOP base when he chose to sign Florida’s anti-mandate bills at an auto dealership called Brandon Honda. As the Miami Herald noted, “Let’s go, Brandon!” is a viral GOP slogan that’s code for an obscenity directed at Biden. When members of the cheering crowd yelled out “Let’s go, Brandon,” DeSantis grinned.  

As vaccine skeptics continue to hold rallies and protest vaccination mandates, some Republican lawmakers say they expect more anti-mandate bills to be filed next year.

“I’ve heard from numerous constituents, including health care workers, that are incredibly disappointed in the outcome of the session,” said Wyoming state Rep. Rachel Rodriguez-Williams, a Republican. “They felt like the governor’s putting all his eggs in one basket and relying on the lawsuit[s], and the state really had the opportunity to take action.”

There’s strong public opposition to Biden’s mandate in some conservative-leaning states, polls show. An October poll from the Deseret News and Hinckley Institute of Politics showed 62% of Utah residents either somewhat or strongly opposed Biden’s rule on large private employers, while 37% were somewhat or strongly in support. National polling, the Deseret News noted, has shown U.S. workers to be significantly in support of the mandate.

Public health law experts worry vaccination mandates have become such a potent issue for the GOP that state leaders could move next to weaken immunization rules they do control, such as school requirements that for decades have protected kids from diseases such as the measles.

“Everybody’s gotta up the ante and prove that they’re more in favor of freedom than the next person,” said Parmet, of the Center for Health Policy and Law. “And where does that end? I don’t know.”