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Republican Gov. Asa Hutchinson last week held his nose and allowed to become law without his signature two identical bills, SB739 and HB1977, that allow employees to opt out of workplace vaccination requirements.
The move capped a legislative session rife with vaccine-related proposals in response to President Joe Biden’s plan to require private companies with more than 100 employees to have all their workers get the COVID-19 vaccine or undergo weekly COVID testing.
We only know the broad strokes of the Biden plan. The finer points are elusive; employers are awaiting an emergency temporary standard from the U.S. Occupational Safety & Health Administration to provide clarity.
That didn’t stop the Legislature from proposing its own vaccine mandates, one of them, SB731, more dreadful for Arkansas employers than what ultimately arrived on the governor’s desk. Even so, the new state law, set to go into effect in January, left business owners and human resources staff in worse shape, stuck to untangle contradictory orders from state and federal regulators as they navigate a crippling pandemic.
In remarks last week, Hutchinson recognized the impossible position Arkansas businesses are in.
“I’m opposed to the mandate by the Biden administration,” he said. “But the solution is not to place additional mandates on employers at the state government level. The solution is not to place the employers in a squeeze play between the federal government and state government.”
Legislators came back to Little Rock last month to deal with redistricting, but the Biden administration’s mandate was too much for General Assembly Republicans to ignore.
Citing federal overreach, legislators approved a plan requiring businesses to have a process for employees to opt out of a workplace vaccine requirement if they’re A) tested weekly for the virus or B) can prove they have COVID-19 antibodies. Lawmakers said they aim to protect workers from losing their jobs. But the practical effect could be that employers not subject to the Biden rule will simply not impose such mandates.
Meanwhile, employers who are subject to the Biden rule will try to reconcile it with the state law. But as noted by the governor and others, there are at least two broad areas where they clash:
► Who pays for testing? The state law says testing “shall be covered through any state or federal funding made available,” including federal American Rescue Plan funds, if an employee’s health plan doesn’t pay. But if that funding isn’t there — and state budget experts have been skeptical that it will be — then the responsibility falls to employees and not the employer.
It’s unclear who bears the costs under the Biden plan; employment lawyers expect the OSHA rule to spell it out. Amanda Orcutt, an employment attorney with Mitchell Williams Selig Gates & Woodyard PLLC of Little Rock, told me that under federal law, employers usually have to pay for employee medical tests and, in the case of hourly workers, the time it takes to take the test. And that could be the case under the Biden plan.
► How do you test? The Arkansas law allows employees to exempt themselves from a workplace vaccination requirement through weekly negative antigen or molecular diagnostic tests, or an antibody test to show “proof of immunity” to COVID-19. As the governor said last week, it’s doubtful that the OSHA rule will say an antibody test is acceptable. (Medical experts are unclear on exactly what level of antibodies must be present to protect a person from infection or ensure that the virus won’t spread.)
Orcutt said that, after the OSHA rule comes down, possibly next month, Arkansas employment lawyers and businesses will be looking at “a Venn diagram” of the OSHA rule and the Arkansas law to see whether there’s any overlap “where employers can be compliant with both.”
“And that’s what we’re going to shoot for, and sort of hope for the best until this plays out in court, which it certainly will,” she said.
I didn’t even get into the implications the Arkansas law has for the state’s health care facilities. In short, I expect them to ignore the Arkansas requirement, adhering instead to the OSHA rule and Medicare Conditions of Participation, violations of which can carry big fines and, according to the hospital industry, put Medicare and Medicare reimbursements in jeopardy.
