Thread by @drbairdonline

While at-will & contract employees across US sue in state & federal courts for judicial relief, states like Montana & Arkansas have led the way in banning private & public employer Covid-19 vaccine mandates as condition of employment
Thread
1/

In the first federal ruling on vaccine mandates, U.S. District Judge Lynn Hughes in Bridges v Houston Methodist ruled on June 12 that employers could mandate Covid-19 vaccination but ruling applied only to TEXAS, PRIVATE employers & AT-WILL employees
2/

https://twitter.com/drbairdonline/status/1404825474467958786

On June 14, plaintiff’s attorney Jared Woodfill filed an appeal to the US Fifth Circuit Court of Appeals where Judge Hughes has second-lowest affirmance rate (72%) in his district
3/
thetexan.news/houston-nurses…
reuters.com/article/legal-…

According to a June 2021 Ogletree Deakins benchmarking survey, only 7.6% employers are leaning to vaccination mandates while 87.9% employers reported currently not planning mandates. If it stands, will Judge Hughes decision influence other employers?
4/
mondaq.com/unitedstates/h…

Bloomberg reports companies hesitant to mandate Covid-19 vaccine out of concern w/possible lawsuits due to Emergency Use Authorization while legal & public health experts recommend encouraging & facilitating worker vaccination rather than mandating
5/
news.bloomberglaw.com/daily-labor-re…

A key part of Judge Hughes decision is that Texas has no “public policy” exception to at-will employment doctrine other than being terminated for refusing to violate a state law (and taking a vaccine is not illegal in Texas)
6/

But other state & federal judges have taken a broader interpretation of “public policy” exceptions to cover situations in which workers are fired for acting in the public interest or exercising a statutory right
7/
news.bloomberglaw.com/daily-labor-re…
ncsl.org/research/labor…

Some 17 states (AK, AZ, CA, HI, IL, KS, MA, MO, MT, NH, NJ, OK, OR, PA, VT, WA, WV) even go so far as to recognize a “broader notion of public good and civic duty” as an exception to the at-will employment doctrine
8/

In Bridges v Houston Methodist, plaintiffs argue that the “public good” was captured by Covid-19 Vaccine EUA striking BALANCE between giving people access to experimental medical products during public emergencies AND assuring no was forced to take them
9/

But with every state pushing people to take Covid-19 vaccine (for the "public good"), would any judge grant a "public good" exception to an at-will employee terminated b/c disobeyed a private employer vaccine mandate UNLESS there was a state statute granting that exception?
10/

An at-will employee of a public employer would actually be in the same boat. Public employers have to follow the Constitution but, according to Judge Hughes, the Constitution provides NO judicial relief against employer vaccine mandates.
11/

Public employees in CA, NC & NM have filed lawsuits against employer Covid-19 vaccine mandates on similar grounds that currently available Covid-19 vaccines have ONLY received Emergency Use Authorization
12/
finance.yahoo.com/news/workers-a…

Furthermore the California Educators for Medical Freedom lawsuit shows that unions & collective bargaining agreements would likely offer little protection against employer vaccine mandates since unions would likely not oppose
13/
educatorsformedicalfreedom.com
ems1.com/coronavirus-co…

While employees across US hopefully turn to state & fed courts for relief, legislators in some 20 states have submitted bills to outlaw private & public employer Covid-19 vaccine mandates and in Montana & Arkansas the bills have become law
14/
nashp.org/state-lawmaker…

On May 7, 2021, Gov. Greg Gianforte signed into law Montana HB 702 making Montana "the first jurisdiction to recognize an individual's vaccination status as a protected category"
15/
leg.mt.gov/bills/2021/bil…

Montana HB 702 prohibits employers from requiring employees to disclose their immunization status and bars employers from requiring employees to receive certain types of vaccines or to possess an immunity passport.
16/
shrm.org/ResourcesAndTo…

Montana HB 702 continues a long Montana tradition of defending employees' rights. The Montana Wrongful Discharge From Employment Act of 1987 (WDEA) "created a cause of action for employees who believe that they were terminated w/o good cause"
17/
ncsl.org/research/labor…

WDEA "prohibits discharge for other than good cause after a designated probationary period & gives the employee the right to challenge a termination in court or before an arbitrator," "the ONLY state to have passed a law with such far-reaching effects"
18/

Unlike the lawsuits which focus on EUA status of Covid-19 vaccines, Montana HB 702 is NOT restricted to Covid-19, resting the law on Montana Supreme Court decision that medical records are "quintessentially private" deserving "the utmost constitutional protection"
19/

April 28 Arkansas enacted a much narrower Bill 977 that prohibits state agencies & their political subdivisions (but NOT private employers) from mandating COVID-19 vaccinations (in effect until two years after FDA approval for the vaccines)
20/
thv11.com/article/news/v…

Both Montana HB 702 & Arkansas Bill 977 were highly partisan with almost all Republicans voting for and almost all Democrats voting agst or abstaining in the state legislature. Both Montana & Arkansas are both Republican state govt trifectas (house, senate & governor).
21/

However in another Republican trifecta Utah HB 308 completely bipartisan, signed into law March 16, similar to Arkansas Bill 977 prohibits govt entities mandating COVID-19 vaccine as condition of employment, but does not apply to private employers
22/
sltrib.com/news/politics/…

In Dem trifecta Oregon most private & public employers can mandate a COVID-19 vaccine, but curiously some types of workers exempt by law: health care workers; firefighters; law enforcement officers; corrections, parole & probation officers
23/
oregon.gov/boli/workers/P…

Beyond the employee rights discussed above for MO, AR, UT & OR, as far as I can tell there are no other state statutory restrictions on employer Covid-19 vaccine mandates. Furthermore, NO state, whether red or blue, appears to want to follow Montana's sweeping example
24/

For all the those well-publicized executive orders outlawing Covid-19 vaccine passports from Repub governors like Greg Abbott & Ron DeSantis, NONE ban either private or public employer Covid-19 vaccine mandates
25/
forbes.com/sites/carliepo…

The Covid-19 laws passed recently in Republican trifecta states like AL, FL, ID, IN & TX address only ban vaccine requirement for entry, goods & services and do not address employer-employee relations at all
26/
beckershospitalreview.com/digital-transf…

Likewise Wisconsin Assembly Bill 299 banning Covid-19 vaccine passports recently passed by the Republican-dominated House that Democratic Gov. Tony Evers has threatened to veto does not address employer-employee relations at all
27/
jsonline.com/story/news/pol…

Do any of these governors or legislators who are so opposed to Covid-19 vaccine mandates CARE AT ALL about employees terminated because of their wish to not take an employer mandated Covid-19 vaccine?
28/

In signing Texas SB 968 banning Covid-19 vaccine passports, Gov Abbott wanted it to APPEAR - as he says in the tweet - that the law "prohibits any TX business...from requiring...any vaccine information." He should have added UNLESS you're an EMPLOYEE!
29/

https://twitter.com/GregAbbott_TX/status/1402022555960086531

Although no Texas politician would come forth and say it outright, it should have been clear that Texas SB 968 signed into law on June 7 would not protect Houston Methodist employees.
30/
texasscorecard.com/state/vaccine-…

However there were bills that if passed WOULD provide employee protections e.g. Sen. Bob Hall's Texas SB 1669 which makes it “unlawful employment practice” for employer to fire, not hire, or discriminate agst someone for not being vaccinated or not being immune to a disease
31/

During May 6 committee hearing, the Senate State Affairs Committee heard testimony from Texas doctors like Dr. Ben Edwards who expressed concerns about the safety of the COVID-19 vaccines. (The videos of testimony are all available on Youtube.)
32/

The Senate State Affairs Committee substitute for SB 1669 limited provisions to only the COVID-19 vaccines, as well as, any vaccine that has not received full FDA approval but that didn't make any difference as the bill has been left pending in committee since May 10.
33/

A similar bill Texas HB 1687 sponsored by 20 Republicans, referred to International Relations & Economic Development Committee on March 9, died in committee
34/
huschblackwell.com/newsandinsight…

When Judge Hughes dismissed the Bridges v Houston Methodist case on June 12, hundreds of people on Twitter called for @GregAbbott_TX to take action. "Call a special session! Ban vaccine passports/mandates!"
35/

https://twitter.com/SwainForSenate/status/1403905344317759492

Plaintiff's attorney Jared Woodfill likewise stated “Governor Abbott needs to exercise some leadership & make this issue a priority during the special session...Your job should not be contingent on your willingness to be a human guinea pig.”
36/
texasscorecard.com/state/gov-abbo…

Even before Judge Hughes decision, Sen Bob Hall was already saying “I will ask that this [the protections in SB 1669] be added to the 87th Legislative Special Session Call. I will continue to fight against vaccine mandates and discrimination..."
37/
texasscorecard.com/state/vaccine-…

In addition to the MO, AR, UT, OR & TX bills already discussed, there are an additional 18 states where 30 bills banning employer Covid-19 vaccine mandates have been introduced in the state legislatures (9 in senate, 21 in house)
38/

States quite diverse w/7 Repub trifecta, 5 Dem trifecta & 6 Divided although bills overwhelmingly partisan, sponsored by one or more Republicans with only occasional Democrat sponsor. Maryland HB 1171 was the only one of the bills introduced by a Democrat (Del. Nick Charles).
39/

The oldest bill is SC SB 177 (introduced 9 Dec 2020) & most recent AK HB 175 (14 Apr 2021) w/most introduced in Jan-Feb 2021. According to legiscan.com only 7 bills appear to be active, w/others reported as "died" or no activity after committee referral.
40/

Only 4 of the 30 have been voted on. Colorado HB 1191 was "postponed indefinitely" in 8-5 Democrat-controlled committee vote on May 12. PA HB 262 recently passed June 15 in 15-10 Republican-controlled committee vote & is back in the news again.
41/
pittsburgh.cbslocal.com/2021/06/15/bil…

Wisconsin AB 25 "Prohibiting vaccination against SARS-CoV-2 as condition of employment" on March 23 passed state assembly 59-35 w/all Repubs voting for & all Demos agst, sent to Repub-controlled senate committee March 24 w/no activity since
42/

South Carolina SB 177 ban on employer COVID-19 vaccine mandate (except for employees "treating or caring for vulnerable populations") Apr 8 passed state senate 33-7, with all 28 Repubs & 5 Demos voting for, sent to Repub-dominated house committee on Apr 13 w/no activity since
43/

This brief examination of the most recent bills suggests that, beyond the laws passed in MO, AR, UT & OR discussed above, the odds of employees getting legislative relief from employer COVID-19 vaccine mandates is about as unlikely as getting judicial relief
44/

Talk about a ban on employer vaccine mandates is so partisan that, beyond the curious little bill in Oregon, there is no way that a state with a Democrat-controlled senate or house (MN only state w/divided legislature) would ever pass such a bill
45/

The partisan nature of a ban on employer vaccine mandates is most clearly seen in Wisconsin & Pennsylvania, divided states where both houses are Repub-controlled w/Dem governor (also applies to KS, MI, KY & NC but no partisan debate in those state)
46/

Democratic opposition to any ban on employer vaccine mandates came to a head in Wisconsin in debate over an earlier COVID-19 bill #AB1 wch included brief section on "Mandatory vaccination for employment prohibited," introduced Jan 4 & passed by legislature Feb 5
47/

Original #AB1 passed state house quickly Jan 7 in totally partisan 56-34 vote. Dem Governor Tony Evers, threatening he would veto the bill, pressured Repub leaders in state senate to remove employer vaccine ban & amended bill passed senate Jan 12 in bipartisan 29-2 vote
48/

Jan 26 state house Repubs reinstated employer vaccine ban in #AB1 & this time senate Repubs didn't challenge, bill passed senate Feb 5 in totally partisan 19-11 votes. As promised, within hours of passage, Gov Evers vetoed #AB1
49/
news.bloomberglaw.com/daily-labor-re…

In his Feb 5 letter to assembly explaining the veto of #AB1, Gov Evers attacked Repubs for lack of "good faith" in refusing to seek compromise, passing bill instead that "takes away existing tools available to public health officials and employers” to fight COVID-19
50/

Gov Evers in his Feb 5 letter further argued that what he was doing by opposing bans on employer COVID-19 vaccine mandates was putting health & safety of Wisconsonites over politics (Repubs instead put politics over people) & “following the science and public health experts”
51/

The odds are stacked against Pennsylvania HB 262. If it manages to pass the Repub-controlled legislature, it would undoubtedly face a veto from Dem Gov Tom Wolf.
52/

A Pittsburgh Business Times article from Feb 2021 when HB 262 was introduced reveals the political battle lines in the debate over employer COVID-19 vaccine mandates with an unorganized Republican base pitted against some powerful interest groups
53/
bizjournals.com/pittsburgh/new…

The chief promoter of mandate bans in each state is typically a sole Republican legislator (for HB 262 it is Rep. Russ Diamond) who emphasizes the "experimental" nature of current COVID-19 vaccines & argues employees should have freedom to choose w/o fear of retribution
54/

These views agst vaccine mandates reflect prevailing distrust esp common among Repubs reflected in opinion polls. Repub legislators thus appeal to their base in ALWAYS voting FOR mandate bans - in the rare circumstances when they actually have to vote
55/
kff.org/report-section…

On the other side of the battle lines, those opposing the bans on employer COVID-19 vaccine mandates include #MSM that typically portrays ban supporters in negative light & opposition from powerful business & healthcare interest groups that have no qualms about the vaccine
56/

Alex Halper from PA Chamber of Business & Industry said ban would restrict employer ability to create safe workplace, big govt intrusion on private sector, would hamper post-pandemic recovery & more concerned for employees working next to unvaccinated than freedom to choose
57/

The influence of these powerful interest groups explains perhaps why bans on employer vaccines mandates so popular among the Repub base have gotten practically nowhere in the 23 Republican trifecta states (w/exception of MO, AR & UT laws already discussed)
58/

Feb 2021 PEW article attributed failure of SB 74 - that would ban mandatory worker vaccines in Republican trifecta Indiana - to opposition from the state Chamber of Commerce, health care groups & public health experts
58/
pewtrusts.org/en/research-an…

Re Pew article "experts say" lobbying by "anti-vaxxers" turbocharged by "online disinformation" unlikely to get SB 74 passed b/c "the proposals threaten employers’ legal obligation to maintain a safe workplace and could put the lives of workers, customers & patients at risk"
59/

Co-sponsor Sen Phil Boots "killed" SB 74 mid-Feb "by declining to bring it up for a committee vote," saying "There was simply not enough support for the bill to move forward in the legislative process" & "Many of my colleagues felt that federal exemptions are adequate"
60/

I'd bet that, if the committee had actually voted, SB 74 would have passed, & then house & senate would have passed it & sent to Repub Gov Eric Holcomb who would have been hard-pressed NOT to sign it. But Indiana Repubs NEVER let it come up for a vote! The same w/HB 1488.
61/

Indeed I'd bet same thing would have happened in ALL 8 Repub trifecta states (AL, IN, IA, MO, OK, SC, TN, TX) where mandate ban bill failed to pass - as well as ALL 15 other Repub trifecta states if someone had introduced a bill - if Repub leaders hadn't suppressed voting
62/

As for the 27 Repub governors they like to prove their conservative bona fides by executive orders and/or signing bills banning "vaccine passports" while avoiding like the plague talking about the fact that they won't talk about banning employer COVID-19 vaccine mandates
63/

But then for a Repub governor to even mention opposition to employer COVID-19 vaccine mandates might mean they would have to consider questions about the safety of the "experimental vaccines" thus compromising their position as chief cheerleader in each state for the vaccine!
64/

"Conservative" Repub governors thus end up - without saying so - following the line of Reagan-appointee Judge Lynn Hughes who in his decision in Bridges v Houston Methodist (that started this thread) outright denied the EUA COVID-19 vaccines were “experimental and dangerous”
65/

Wrapping up this thread, we might speculate whether more powerful forces lie behind the opposition of BOTH Repub & Dem state leaders to bans on employer COVID-19 vaccine mandates? One must admit mere lobbying by chambers of commerce & healthcare orgs hardly seems sufficient.
66/

For example, Current Revolt reported Apr 2021 Texas State Rep. Angie Chen Button, as chair, was refusing to move HB 1687 out of committee "due to a request by Texas Instruments," for whom she used to work & from whom she received major donations.
67/
currentrevolt.com/thoughts/is-ch…

Now multiply that kind of influence from one major corporation on one committee chairman and it seems a lot more understandable why so many bills banning employer COVID-19 vaccine mandates died in committee w/o even getting a hearing or coming to a vote.
68/

Now throw into the mix the kind of money & influence that Bill Gates & Big Pharma to buy however many politicians they want AND who are likely counting heavily on employer COVID-19 vaccine mandates to force Americans to get take their vaccines
69/

For those who came to this thread b/c you're facing an employer vaccine mandate & now realize that neither the courts nor your state will protect you, I'm sorry the news is so depressing! But as Judge Hughes said, it could be worse. You could be in a Nazi concentration camp!
70/

But if you're sick of the practically limitless power of both private & public employers to enforce such arbitrary mandates, there is at least one ray of hope I got from my research. You can always move to #Montana, by far the most employee friendly state in the US! The End
71/