Governor calls special session as business groups object to proposed vaccine mandate response

Andrew Bahl
Topeka Capital-Journal
The state's leading business groups on Friday opposed legislation set to be considered in a special session on COVID-19 vaccine mandates, saying it will put business owners in a difficult spot.

The state's leading business groups on Friday opposed legislation set to be considered in a special session on COVID-19 vaccine mandates, arguing they will put employers in the position of having to choose between following federal directives and the proposed state laws.

Gov. Laura Kelly officially called the special session Friday afternoon after legislative leaders delivered the required number of petitions to recall themselves to Topeka the week of Thanksgiving.

“Today, the legislature delivered a successful petition to my office; I take my constitutional obligations as Governor seriously, and am announcing a special session accordingly,” Kelly said in a statement.

The Occupational Health and Safety Administration published rules last week that require workers at large companies be vaccinated against COVID-19 or be tested for the virus weekly, starting Jan. 4.

A slew of states, including Kansas, responded with lawsuits over the OSHA mandate and separate requirements that federal employees and health care workers be vaccinated.

But legislators have gone further, pushing to consider bills that would require workers who lose their jobs for refusing the vaccine be granted unemployment benefits, as well as a separate measure that would make it easier for residents to be granted religious or medical exemptions from getting the shots.

Demonstrator again compares vaccine mandates to Holocaust

This didn't appear to placate more than two dozen members of the public, who argued the bills do not go far enough to fight back against what they consider to be "tyranny."

Many advocated for the ability to seek damages from employers who deny medical or religious exemptions and want more specificity in how employers must behave when faced with the requests.

Daran Duffy sits with his wife and daughter while  wearing yellow stars taped to their clothes during Friday's Special Committee on Government Overreach and Impact of COVID-19 Mandates. The reference to the Holocaust earned Duffy a sharp condemnation from Sen. Pat Pettey, D-Kansas City, Kan.

That includes three demonstrators who wore yellow stars, a reference to the singling out of Jews in Nazi Germany. One of them, Daran Duffy, told legislators it was not "meant to be offensive" but rather a "reminder" that "everything Hitler did ... was in accordance of the laws of his country."

It earned him a sharp condemnation from Sen. Pat Pettey, D-Kansas City, Kan., who said she hesitated to bring the matter up because "I hate to give you the attention."

"You are not respecting Jewish people. You are desecrating that memory," she said. "Millions of people were killed. We are not talking about millions of people being killed here."

It is the second time the Holocaust has been invoked during a committee hearing on vaccine mandates.

More:Kansas legislator compares COVID-19 vaccine mandates to the Holocaust, as lawmakers examine federal orders

Last month, a union leader compared compare discrimination on the basis of vaccination or mask-wearing to "racism against the modern day Jew," which a state legislator on the panel appeared to later agree with.

Friday, legislative leaders from both parties, including GOP House Speaker Ron Ryckman, Senate President Ty Masterson, condemned the comparisons.

 "Let me be clear: the issues being debated today are important to KS, but they are in no way comparable to what millions of Jews endured who were ripped from their families, & marked for death by the Nazis," Ryckman tweeted.

Groups argue bill makes employers choose between state, federal mandates

Senate president Ty Masterson, R-Andover, questions proponents at Friday's Special Committee on Government Overreach and Impact of COVID-19 Mandates hearing. Masterson and other legislative leaders formally achieved enough support for a special session on COVID-19 vaccine mandates Thursday.

Bills proposed for the special session have raised alarm from some of the most powerful groups in the Statehouse, including the Kansas Chamber and the National Federation of Independent Businesses.

They maintained their opposition to the mandates but argued the court system was the way to fight the battle without harming the state's business and health care climate.

"This fight is not with business owners in Kansas. This fight is not with small businesses in Kansas," said Dan Murray, a lobbyist with the state chapter of the NFIB. "This fight is with the Biden administration."

Under the bill, employers would not be able to inquire about whether an individual's religious views are "sincerely held" and a worker could bring a lawsuit against their company if they feel their rights have been aggrieved, with the employer having to pay the legal fees for all parties involved if a worker prevails.

Because the requirements under the bill are more sweeping than what is imagined under federal guidelines, the groups said they were worried it could either force employers to risk being sued by workers or face thousands of dollars of fines under the OSHA mandate or, for health facilities, losing Medicare or Medicaid funding if they do not comply with federal directives.

Rachel Monger, a lobbyist with LeadingAge Kansas, presents before the Special Committee on Government Overreach and Impact of COVID-19 Mandates. Monger has argued legislation proposed by the committee could adversely impact long-term care facilities.

"Seventy percent of our revenue is Medicare and Medicaid and without federal funding we do not have long-term care in Kansas," said Rachel Monger, vice president of government affairs for LeadingAge Kansas, which represents over 160 long-term-care homes in the state. "CMS has a big stick, and they know it and they use it."

But Senate President Ty Masterson, R-Andover, said businesses could comply with both, saying that any argument to the contrary was a "red herring."

"We really need to get back to focusing on the fundamental right of the individual, on which there is not a dollar value … And if there is a question we need to defer to the fundamental right of the individual," Masterson said.

Jeffrey Jackson, a professor of constitutional law at Washburn University, said earlier this week federal rules would pre-empt state laws that "frustrate the purpose."

"For those people who are expecting this (bill) to somehow get them out of the federal regulation, it won't," Jackson said in an interview. "Because they just simply can't."

Legislators tweaked the bill later in the afternoon to bar employers from taking adverse action against workers who seek an exemption.

More:Can Kansans get unemployment if they quit due to COVID-19 vaccine mandates? Here's what the experts say.

Unemployment expansion could drain funds, critics argue

Eric Stafford, of Kansas Chamber, testifies during Friday's hearing of the Special Committee on Government Overreach and Impact of COVID-19 Mandates. Stafford has argued legislation proposed by the committee could adversely impact Kansas businesses.

Business leaders were even stronger in their opposition to the second bill, which clarifies state law to ensure workers who lose their job because of the vaccine mandates can claim unemployment if a medical or religious exemption is denied, something which is likely not allowed under current law.

This could ding the state fund used to pay out benefits, which has only recently been replenished after a raft of unemployment claims during the COVID-19 pandemic. The Kansas Chamber previously projected an impact of as much as $5.6 billion on the unemployment trust fund.

Eric Stafford, the chamber's lobbyist, added that the bill could encourage individuals to "game the system" and that it could exacerbate current workforce shortages.

"Our fear is what's next, what is the next exemption we are going to create in our UI system," Stafford said.

Rep. Sean Tarwater, R-Stilwell, agreed with that notion but said he hoped the bill would be an inducement to businesses to accept religious and medical exceptions.

"It is a snowball effect, which is why we hopefully gave the business community an out with the first bill," he said. "If they just stick to that and accept these exemptions, we will protect the unemployment fund."

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.