In the last few weeks, we have seen the alarming measures the Biden administration is willing to take to interfere with the rights of states, businesses and individuals to make decisions about their health and the health of their employees. The president’s executive order, as well as the subsequent OSHA Emergency Temporary Standard (ETS) and Centers for Medicare and Medicaid (CMS) vaccine mandates, are an extreme overreach of unprecedented power. When we convened the 2021 special session last week, addressing this overreach was a major goal for Republicans. We spent weeks getting input from citizens, businesses and the healthcare industry to put together a bill that would protect our citizens, while also ensuring we didn’t put businesses and hospitals in a catch-22.
HB1511, which has been signed into law, can be broken down into two main sections. The first section deals with access or entry to property or services. It states that no government entity may require proof of vaccination or antibodies or inquire about an individual’s recovery status for access to property, funds or services and further prohibits the publishing or sharing of an individual’s COVID-19 vaccination record. In addition, the government may not require a private business to obtain documentation for the purposes of certifying or communicating an individual’s COVID-19 vaccination status, presence of antibodies or recovery status (there are exceptions for the department of corrections and correctional facilities, the state hospital and a public health unit, as this information can be necessary to ensure safety and placement of employees and residents).
The bill further prohibits businesses in the state, or doing business in the state, from requesting proof of vaccination, antibodies or recovery status from patrons or customers to gain access to, entry, or services from that business. There is an exception for health care providers and facilities so they can follow appropriate protocol to protect at-risk patients and ensure adequate workforce. To be clear, they cannot deny services based on vaccination status. It’s simply so these facilities know the appropriate measures to take when serving them or allowing them access.
The second section relates to employers in the state. This is perhaps the most impactful part of the legislation in that it gives employees multiple exemptions should their employer require vaccination.
There are four main exemptions for employees, prospective employees and independent contractors: 1) They must be allowed to show proof of antibodies as an exemption to the vaccination requirement (this proof is valid for six months); 2) they must be allowed to submit to periodic testing as an exemption (testing is free through CARES Act dollars at DOH state testing sites); 3) they must be allowed to refuse vaccination if a North Dakota licensed physician certifies that immunization would endanger the life or health of the employee; and 4) they may refuse vaccination by signing a certificate stating the employee’s religious, philosophical or moral beliefs are opposed to such immunization.
These exemptions do not apply to the extent an employer or an independent contractor is required to comply with current, active federal law, rules or guidance relating to requirements for vaccinations for COVID-19. This is important because it would force those falling under the federal contractor or health care worker mandates to choose which law to break or be embroiled in potentially lengthy litigation. In addition, without exemptions for those subject to the federal mandates, hospitals and healthcare providers could lose 60-70% of their revenue and those with federal contracts could lose billions.
Because the current OSHA ETS mandate has been stayed and currently suspended, businesses in the state with over 100 employees must provide the above state exemptions to their employees. This is a big deal. The same is true of the CMS mandate until it either goes into effect in January or is stayed/invalidated. These employee exemptions also apply to higher education institutions unless they fall under an active federal mandate (the state law does not apply to federal employees, as we have no control or jurisdiction over federal employees).
On such a complex legal and political issue, it can be difficult to come up with a result that suits everyone. I’m sure there are many who would want it worded this way or that. At the end of the day, we took everyone’s input into consideration and came up with a result that I believe gives ample protections to our citizens, while ensuring businesses currently subject to the federal mandates can continue to function without a major, devastating revenue loss. We will continue to support all lawsuits against the Biden administration’s aggressive overreach and continue to do all we can to defend our citizens’ rights.
Weisz, a Republican in the North Dakota House of Representatives, is chairman of the Joint Technical Corrections Committee.