Kentucky attorneys H. Douglas Jones and Margo J. Menefee reported on this site Wednesday that their state has introduced legislation that would prevent discrimination based on immunization status. Specifically, they conveyed that:

Bill Request 358 would ban employers from altering any conditions of a worker's employment due to that worker declining immunization or refusing to disclose immunization status. It would also prohibit employers from requiring immunization as a condition of employment.

This concept is similar in nature to recent legislation in Montana. They passed a law last spring that prohibits discrimination in any form against people based on their vaccination status. HB 702, signed by Governor Greg Gianforte on May 7, 2021, places unvaccinated persons in a legally protected class under the Montana Human Rights Act. It is still, pending the outcome of Kentucky's effort, the only law of its type in the nation.

Both the Kentucky legislation and Montana law directly pits the state against the power of federal requirements. As we mentioned in an earlier missive on the topic, while it is well established that federal law supersedes state legislation, the federal mandates may not exactly be “law.” This will only serve to further baffle and confuse employers as they attempt to navigate the Covid regulatory minefield.

Currently, the emergency order recently issued by OSHA requiring vaccinations for employees in companies with 100 or more people is on hold, having been ordered so by the Fifth Circuit Court of Appeals. Compounding the issue, the White House has indicated their rule will be enforced despite that court order; and that specific case is just one of many wending their way through the federal court system. State AG's, unions, private companies, and more are suing the federal government over the mandate. The state of Florida has announced its intention to sue over the vaccine mandate, and other states appear poised to do the same. The final outcome on all of this is far from certain.

There are challenges at the state level as well. Court cases challenging Montana HB 702 have been filed, and it is almost as certain that Kentucky's bill if enacted, will see similar challenges.

While court cases abound, the act of legislating defiance remains rare. Montana has been a stand-out on this, and it appears Kentucky is about to join their rarified ranks. Governor Ron DeSantis has called a Special Session for the Florida state legislature, which will begin November 15 and directly address vaccine mandates. Descriptions of proposed bills they will consider have been released in advance of the session.

According to those summaries, issued by the House and Senate, they “include ensuring workers can receive exemptions from employer-required vaccinations; preventing government employers from requiring workers to be vaccinated against COVID-19; reinforcing the state's so-called “Parents Bill of Rights” law to shield schoolchildren from mask and vaccination mandates; moving toward withdrawing from federal Occupational Safety and Health Administration oversight; and prohibiting the state surgeon general from forcing people to be vaccinated.” It will be interesting to see which, if any, other states will join the fray.

All of this creates even more confusion for employers, who may in some cases have to choose which law they care to violate. Meanwhile, states will legislate, courts will adjudicate, and employers, well they will just wait. They are in the middle while forces beyond their control define what the future of vaccine compliance will look like.

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