COVID vaccine compromise measure gains support in House
CHEYENNE — A bill forcing both sides of the vaccine mandate issue to make compromises is gaining momentum in Wyoming’s House of Representatives.
It would allow businesses to require vaccination among their employees, but aff ords noncompliant workers a litany of exemptions and accommodations.
The bill, and the special session overall, has mixed support. The Cheyenne Chamber of Commerce, for example, wrote a letter opposing the legislation because it creates “burdensome and litigious regulation.”
Jeff Storey, assistant chief medical officer at Cheyenne Regional Medical Center, said he does not believe mandating vaccines is an effective way to get people to take them. Cheyenne’s hospital has not required employees to get vaccinated against COVID-19, though roughly 80% of employees have chosen to do so. But the hospital is large enough to be bound by federal mandates.
“As a health care organization in this state, it makes it very hard if it also is mandated in the opposite direction of saying we can’t use those tools we have available to ensure our patients are safe, our employees are safe and we mitigate this pandemic as quickly as possible,” he said Tuesday. “We would implore the committee to reconsider mandating against a mandate.”
The bill’s author, Rep. Mike Greear, R-Worland, said he hopes the legislation provides options both for those concerned about mandatory vaccinations, and those worried about state law infringing on private business.
“The bill was designed to be amendable,” he said in a committee hearing Tuesday. “One of the basic concepts of this bill is that it does allow an employer to issue a mandate. They have to find a good reason for it ... and then if they do so they have to provide exemptions and then reasonable accommodations.”
House members have spent much of Wednesday morning debating what those exemptions and accommodations should look like.
It’s a complicated bill; here’s a rundown of what it includes so far and the discussion surrounding it.
An employer would be able to require vaccines given an emergency use authorization by federal officials if “critical to ensuring the health, safety and welfare,” of employees and patrons, but would need to submit that finding in writing to the Wyoming Department of Workforce Services.
The employer would also need to accept a wide range of exemption requests.
An amendment added to the bill on Wednesday would also apply the same rules to mandates for any future vaccines under emergency-use approval. While preexisting treatments received emergency approvals for other diseases including H1N1 and Ebola, the COVID-19 inoculations were the first new type of vaccine to earn that designation from the FDA.
Testimony from Tuesday’s committee hearing led lawmakers to adjust the requirements to essentially require employers to accept any exemption request they receive.
Exemption requests for religious and medical reasons, and for those who have already contracted COVID-19, would have to be honored.
Nearly everyone who testified Tuesday shared some willingness to find a compromise. Officials at Banner Health, which operates four hospitals in Wyoming and has a vaccine mandate that will go into effect at the end of November, suggested amendments that would allow them to continue a testing program if their mandate became illegal.
Banner employees opposed to the mandate said they would be in favor of taking on additional precautions to accommodate safety concerns.
Lawmakers themselves seemed receptive to work ideas from multiple perspectives into the bill, and it ultimately advanced Tuesday night.
On Wednesday morning, the bill passed the House on its first reading, with an amendment that would require employers who have already enacted mandates to begin accepting exemptions from employees again.
Several residents Tuesday told committee members their attempts to get religious exemptions from employers were denied. This bill would essentially strip an employer’s ability to deny any religious waiver request.
“I’ve been a born again Christian since the age of 8,” a Worland radiologist who requested and was denied a religious exemption to Banner Health’s vaccine mandate told committee members Tuesday.
Her denial said there was “no sincerely held belief,” qualifying her for an exemption, adding that she’d previously received religious exemptions to flu shot requirements without having to explain the request.
She also said the request form was more burdensome than previous exemption documentation.
The Star-Tribune requested a blank copy of that exemption request from Wyoming Medical Center, but was told the hospital does not share internal documents.
Committee members pressed Lance Porter, the CEO of Banner’s Wyoming Medical Center in Casper, on the issue, asking what criteria Banner was using to accept or deny those exemptions.
Porter, who said those exemptions have shifted from being called religious waivers to “strongly held beliefs” exemptions, did say there is a litmus test in place to ensure employees aren’t using religion simply to avoid taking a vaccine.
Rep. Chuck Gray, R-Casper, asked Porter why there would need to be a litmus test at all.
“I’ve had moments where I’ve had sincerely held beliefs but haven’t done a great job at expressing myself,” Gray said. “So how can you say the quality of how someone expresses themselves is determinant of whether you’re going to grant an exemption?”
The discussion led the committee to later advance an amendment requiring employers to accept any religious exemption request it receives. That amendment was accepted by House lawmakers Wednesday.
An amendment adopted Wednesday would also strip the employer’s ability to deny medical exemptions if they are signed by a physician. The rule came after testimony from a Casper OB/GYN Melissa Hieb, who told lawmakers such requests were being denied by Banner.
During her testimony, Heib questioned the efficacy of COVID-19 vaccines and suggested information about COVID-19 is being “censored.” In previous testimony to lawmakers, Heib said medical exemptions she had signed were being denied by the hospital’s owners.
The testimony succeeded in getting lawmakers to advance an amendment forbidding employers from deliberating over exemption requests if a physician has signed them. If a medical exemption not signed by a physician is requested, the employer is allowed to make its own determination.
On Wednesday, Rep. Cathy Connolly, D-Laramie, criticized giving employers that much discretion.
“An employer gets to act as a doctor?” she asked on the House floor. “Employer A might grant that exemption and Employer B might not.”
Both medical and religious exemptions are required under existing law. The debate Tuesday and Wednesday dealt with the specific conditions they would need for approval.
But lawmakers adopted a third exemption that would allow someone already infected with COVID-19 to opt-out of vaccine requirements, claiming they would have a natural immunity to the virus.
Two physicians who testified Tuesday explained that immunity does not last as long as protection from a vaccine, and that the degree of protection after infection varies from person to person.
Dr. Andy Dunn, chief of primary care at Wyoming Medical Center, said vaccines provide more uniform immunity.
Natural immunity wanes depending on how severe a person’s illness was, he said. Those with mild or asymptomatic illness might not be protected for the same amount of time as someone who was severely ill.
He stressed that antibody tests aren’t a good indicator of how strong a person’s immune system will truly respond if infected with different variants of COVID-19.
Storey, the Cheyenne physician, said something similar.
“What we have found with natural immunity is it’s very effective initially,” he said. “But that immunity flags if you go to a region that has had a different variant of COVID or over time.”
Additionally, the vaccine attacks more than five different points on the virus, he said, as opposed to natural immunity attacking just one point on the virus.
Their testimony did convince lawmakers to remove a requirement that antibody tests be accepted by employers, but it did not convince them to remove the natural immunity component altogether — a provision with mixed support among legislators.
Rep. Dan Zwonitzer, R-Cheyenne, said on Wednesday that the science around natural immunity is too uncertain to grant exemptions to anyone who’s recovered from the coronavirus.
Still, the bill now reads, “An employer shall grant an exemption for medical contraindication to the administration of the COVID-19 vaccine or upon written evidence that the employee is fully recovered from a COVID-19 infection.”
Employees who don’t get vaccinated would need to be given an opportunity to work in a different setting, and would be required to undergo more rigorous testing, under the proposed accommodations.
Lawmakers are proposing providing $10 million to The Wyoming Department of Workforce Services for that testing requirement.
An amendment voted down Wednesday in the House would have slashed that funding to just $1,000, based on testimony Tuesday in the Appropriations Committee that the Department of Health already has enough funding and tests to cover any employer’s needs. But even with enough tests on hand, the money may be needed for administration, several lawmakers argued on Wednesday, including delivery, processing and returning results on a regular basis.
If a business did not comply with all of the rules laid out in the bill, it would be fined $100 per day the mandate existed outside of those parameters. It would also need to provide severance pay to employees who left because of the mandate.
An amendment adopted Wednesday by the House intends to protect businesses bound by federal rules, such as nursing homes reliant on federal dollars and Medicaid reimbursements, from possibly losing those federal funds they rely on to function, said Tom Lacock, associate state director for the AARP in Wyoming. If the amendment had not been passed, nursing homes, hospitals and other outfits would have risked losing CMS certification.
Gray, who was against the amendment, argued that the federal government is not likely to actually cut off those funds. Despite Gray’s and other lawmakers’ best efforts to vote “no” on the amendment, it passed.
It’s unclear how the proposal will square with federal vaccine mandates that have been promised but not yet finalized. The Biden administration in September announced intentions to require vaccines for employees at businesses with 100 or more workers, and to require all federal employees and contractors to get inoculated.
That announcement came nearly two months ago, but the rules haven’t been finalized, explained Josh Hannes, a lobbyist for the Wyoming Hospital Association and Leading Age Wyoming.
“There are no rules as we sit here today,” Hannes said. “That’s sort of the problem with all these other bills.”
He said the bills passed during this session may not conflict with rules determined by federal officials, but there’s no way to know that right now. This bill, for example, allows a handful of exemptions that might not follow the federal process once it’s outlined for employers and entities receiving federal dollars.
Amendments have been proposed to address this concern, but without the federal rules, there’s no way to know how encompassing those amendments will need to be.