Kansas legislators are having a special session on COVID vaccine mandates. Here's what you need to know.

Andrew Bahl Jason Tidd
Topeka Capital-Journal
The Kansas Legislature this week in a special session will consider measures to address federal COVID-19 vaccine mandates.

The Kansas Legislature is set to return to Topeka this week in a historic first, recalling themselves for a special session to center on federal COVID-19 vaccine mandates.

That's the easy part. What happens next? Well, that's anybody's guess.

It is unclear if legislators have the support needed to pass two measures they have already identified as top priorities, even in the face of opposition from the state's business community. It also is uncertain whether conservative members will attempt to lead their colleagues in pursuit of more aggressive anti-mandate policies.

And regardless of what hits Gov. Laura Kelly's desk, the session is likely to have substantial ramifications for the 2022 election, with the governor having to strike a delicate balance of opposing the federal mandates while also not turning her back on Democratic allies elsewhere.

More:Kansas Republicans say they have support for special legislative session on COVID vaccine mandates

While the Occupational Health and Safety Administration announced they were backing off the most controversial federal vaccine mandate, requiring workers at large employers get the shots, due to a court order, the Legislature's plans remain unchanged.

Special session cost will be at least $63,000 per day

The special session was inspired in no small part by anti-mandate and anti-vaccine outcry from hundreds of people who spoke in-person, submitted written testimony and attended a protest on the Statehouse lawn.

The Legislature's decision to depart from its traditional session schedule won't come cheaply, with Legislative Administrative Services estimating the endeavor will cost $63,000 per day.

Initially, legislative leaders were hesitant such a move was worth it, despite the urging of their most conservative members after President Joe Biden announced the mandates in September.

A compromise was reached where a special committee was formed to probe the matter, with enough support eventually building earlier this month to recall lawmakers to Topeka.

The move is historic — it is the first time the Legislature has gotten the two-thirds majority needed to call a special session. Each of the state's 20 previous special sessions have been called by the governor.

Legislators will pursue at least two bills upon their return to Topeka. 

That includes a measure requiring workers who lose their jobs for refusing the vaccine be granted unemployment benefits. A second would make it easier for residents to be granted religious or medical exemptions from getting the shots.

More:'Alarming news' on COVID case increases has Kansas doctor 'cautiously braced' for another surge

Under that proposal, employers wouldn't 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.

A third measure, introduced by Rep. Vic Miller, D-Topeka, could also be considered. It would allow workers to sue their employers if they are mandated to get the shot and suffer an adverse reaction.

Senate President Ty Masterson, R-Andover, has said the proposed bills were an effective counterweight, not just to the OSHA mandate but also requirements that federal contractors and health care workers be vaccinated. With those policies originally set to take effect in January — pending legal challenge from a group of states, including Kansas — time is of the essence, he said.

“We're not going to let the Biden Administration force businesses to play God or doctor and determine whether a religious or medical exemption is valid or not," Masterson said in a statement announcing the special session. "We're going to trust individual Kansans."

Business opposition could frustrate legislative efforts

Others aren't convinced, however.

Chief among them are the state's business and health care communities, who have opposed one or both of the measures.

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

Top business groups, which are traditionally allies of Republican lawmakers, are particularly concerned about the unemployment bill.

The exact damage to the fund which pays out unemployment claims is unknown.

An analysis by the Institute for Policy & Social Research at the University of Kansas found about 363,000 Kansans are currently working and unvaccinated. If every single one of those people lost their job and claimed unemployment insurance, the cost could be as high as $1.5 billion, said Donna Ginther, a KU economist.

"But that's not going to be the case," she said, pointing to a Kaiser Family Foundation survey finding that only about 5% of workers don't comply with vaccine mandates.

Kansas does have "a lot of vaccine hesitancy," she said, so a 10% noncompliance rate would mean $127 million to $510 million cost to the unemployment insurance system. That would be detrimental for Kansas businesses in both the rising cost of unemployment insurance and a worsening labor shortage.

The debate comes after conflict between Kelly and Republicans over leadership at the Kansas Department of Labor, including whether fraudulent benefit payments have drained the unemployment trust fund.

"I would say that's ironic," said Sen. Jeff Longbine, R-Emporia.

There is also concern that expanding religious and medical exemptions wouldn't play well with the federal mandate, potentially leaving businesses out of compliance and at risk for fines.

Republicans have insisted this is not the case, arguing workers could use the state-level exemption language to get out of the federal mandate.

Richard Levy, a professor of constitutional law at the University of Kansas Law School, said the reality is less certain, though he noted Republican legislators could ultimately be proven correct.

But similarly, because federal law gives an option for employers to inquire about a person's religious beliefs, banning that "might be seen as conflicting with federal law," Levy added.

"It's hard to predict how all of this stuff would unfold," he said.

Others are taking more of a wait-and-see approach. Doug Girod, chancellor of the University of Kansas, demurred when asked about the potential impact the bills might have on his campus, even though it will be covered by a requirement for federal contractors to get the vaccine.

It comes after legislators moved earlier this year to limit the ability of government institutions — including universities — to ask for proof of vaccination.

"We've got a federal mandate that's coming in on top of that, that puts us in direct conflict," Girod told reporters Thursday. "And just creating more conflict doesn't help. I'm not sure what people are supposed to do." 

Conservatives could push more aggressive action

Conservative legislators, including Sen. Mark Steffen. R-Hutchinson, could push their colleagues to take more aggressive action to oppose the federal vaccine mandates.

Some conservative lawmakers see the proposed legislation as just the beginning — not the end — of the body's work.

Sen. Mark Steffen. R-Hutchinson, one of those legislators who pushed for a special session earlier, said he considered the two bills set to be considered as the lower "rungs on the ladder."

A more aggressive approach, such as banning all vaccine mandates in the state — a move lawmakers in Montana undertook earlier this year — would be the ultimate goal, he said, though Steffen declined to say if he would bring an amendment to that effect on the floor.

"I'm going to have to see how this thing plays out and what the opportunities are and what the right thing to do at the time is," Steffen said. "I think it is going to be very fluid."

Whether explicit or not, the Legislature's intent appears to be addressing the two bills previously proposed and returning to take up bolder legislation, such as Steffen's proposal, in January, when the regular legislative session begins.

"This is not a perfect bill by any stretch of the imagination," Sen. Mike Thompson, R-Shawnee, said on a podcast hosted by the anti-vaccine group Kansans for Health Freedom. After the special session, legislators can "take up the rest of the fight in January."

He told the so-called Truth to Freedom Podcast the bills will "at least give as many people as possible and hopefully everybody ... a way to get out of the vaccines and a way to get out of losing their jobs."

Thompson said "a lot more needs to be done" and called on "weak-kneed" lawmakers needed to "jump into the fray."

In Steffen's analogy, it is unclear what other rungs are on the policy ladder. One proposal from Sen. Caryn Tyson, R-Parker, is to block contact tracing for COVID-19.

More:'It's an invasion of privacy': Kansas GOP lawmaker wants COVID contact tracing stopped by special session

Senate Minority Leader Dinah Sykes, D-Lenexa, signaled there may be an appetite among Democrats for amendments adding long-sought changes in unemployment eligibility. Benefits for gig workers and school bus drivers would be on such a list.

Special session politics could bleed into 2022 governor's race

Gov. Laura Kelly's position on bills proposed during a special session on COVID-19 vaccine mandates remains unclear, with the Kansas Department of Health and Environment and Kansas Department of Labor declining to weigh in on them during public hearings earlier this month.

Gov. Laura Kelly's position on the bills currently proposed remains unclear, with the Kansas Department of Health and Environment and KDOL declining to weigh in on them during public hearings earlier this month.

More:Lee Norman steps down from Gov. Laura Kelly's administration after leading KDHE through COVID pandemic

But the issue is likely to have substantial impact on her re-election bid going forward. In a statement released earlier this month, Kelly opposed the federal mandates, the first Democrat governor nationally to do so. 

"While I appreciate the intention to keep people safe, a goal I share, I don’t believe this directive is the correct, or the most effective, solution for Kansas," Kelly said

Those remarks came as Attorney General Derek Schmidt, her presumptive opponent in the 2022 governor's race, filed lawsuits against the federal government over three of their directives. When Kelly cheered the pause on OSHA's vaccine mandate on social media, Schmidt chided her for the position.

The special session will be a way of ratcheting up the political pressure, with Republicans likely to use any veto from Kelly's office in the re-election race.

But Bob Beatty, professor of political science at Washburn University, noted the proceedings could go "off the rails" for Republicans, pointing to a series of anti-Semitic remarks from members of the public during hearings on the subject.

"You could argue the voters who are most susceptible to getting riled up by Kelly vetoing something that comes out of this session are not going to vote for her anyway," Beatty said. "So, politically, do you gain much from that? And then do you also have the danger of her vetoing something that may, you know, get a moderate Republican to vote for her who might not might not have?"

For their part, Democrats say they are unbothered by Kelly's opposition to the federal mandates, even though only one of their members — Rep. Aaron Coleman, D-Kansas City, Kan. — signed on to holding the special session.

"At the end of the day, the governor does not tell us how to vote," Sykes said. "I just have to look back to (the 2021) session, there were times that Democrats voted against something and the governor signed it. So she's not telling us how to vote and I hope every single one of my senators vote to represent their district."

But Sykes added she was doubtful any productive policies would come out of the week's work.

"I think no one likes a mandate," Sykes said. "I mean, no one likes being told what to do. And I think we have all had a messaging problem with that from day one. Vaccines are the best solution that we have. And anyone who is trying to say, you know, I don't want the vaccine, I don't want the mandate, I have never heard an alternate solution."

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.