Special session bill supports mandate legal challenge

CHEYENNE — The only bill to come out of the Wyoming Legislature’s weeklong special session will not be as far-reaching as some expected, but it will define the state’s legal battle against the federal vaccine mandate, if enacted as law.

Gov. Mark Gordon announced Friday, the day after House Bill 1002 was signed by leaders of the House and Senate, that his administration would be filing suit against the Biden administration alongside several other states.

If he signs the state legislation, he will be supported not only by a detailed resolution citing the legal rights of Wyoming to defy the mandate, but $4 million in funding dedicated for litigation.

“We have prepared for this moment, and the Attorney General has a strong legal strategy she developed with a coalition of other attorneys general,” Gordon said in a news release. “We cannot allow the rights of Wyoming citizens and her industries to be trampled on by federal overreach.”

This comes after the announcement of a federal vaccine requirement by President Joe Biden in early September, which will impact as many as 100 million employees across the nation. The rules governing this mandate were rolled out by the administration Thursday, and issued by the Occupational Safety and Health Administration.

Companies with 100 employees or more must report their workers are fully vaccinated against COVID-19 by Jan. 4 or show proof they’re testing negative at least once a week. Employers are not required to provide testing for those who choose not to get vaccinated, but they must pay employees for the time it takes to get tested and provide sick leave to recover from any side effects. Unvaccinated employees will also have to wear a mask at work.

The option to go unvaccinated will not apply to health care workers, which was clarified in a separate rule issued by the Centers for Medicare and Medicaid Services.

Although HB 1002 will provide funding for the legal battle against these requirements, it will not provide immediate relief for employees in Wyoming – especially those in the health care field.

The impact of possible legislative action was largely discussed earlier in the week during the Senate Appropriations Committee, which reviewed House Bills 1001 and 1002 before sending them to the Senate floor. Hours of testimony were heard by lawmakers from people on both sides of the argument.

Some constituents asked for a bill to protect their right to make decisions regarding their health care, while others said there might not be medical care to provide if hospitals were forced to choose between following state legislation and losing federal funding.

Hallie Rohrbach, a member of the Wyoming Medical Freedom Advocates, said the funding shouldn’t be the determiner.

“I think we’re getting a little carried away on the dollars, cents and political moves,” she said in her testimony, “and businesses trying to look out for themselves and prevent any inconvenience or accountability, rather than focusing on the science and the freedom of the people.”

With the changes made throughout the final days of the special session and applied to the final version of the bill, advocates such as Rohrbach, and other anti-vaccine medical professionals who testified, will not be granted their requests. HB 1001, which set many protections for workers in the state, died early Wednesday in the Senate.

Health care professionals required to get the COVID-19 vaccine were not the only ones frustrated with the process. Wyoming Wheat Marketing Commission Executive Director Keith Kennedy said there are members and farmers in his organization who are considered federal employees and will be held to the mandate.

“I was disappointed that it didn’t pass in the Senate,” he said, “so they could iron out the differences.”

In the end, HB 1002 was the only chance for any form of shielding by the state. Although the legislation’s main purpose is appropriations and legal standing for the Attorney General’s Office, there is a small section with provisions for those seeking reprieve.

It states, “no public entity shall enforce any mandate or standard of the federal government, whether emergency, temporary or permanent, that requires an employer to ensure or mandate that an employee shall receive a COVID-19 vaccination.”

But the way in which a public entity was defined, as well as the timeline for enforcement, essentially negates the state mandate until further notice, even if the governor signs it. Public entity does not include any entity receiving federal funding and that, by complying with the section, would lose that federal funding. The action is also not enforceable until all litigation is finalized with the federal government or there is a stay.

These changes were made by the Senate Appropriations Committee. The new conditions were upsetting for those who will have to comply until the section is enacted, but others were satisfied with the final version of HB 1002 due to its lack of impacts.

The bill will no longer affect federal funding or contracts for many industries across the state, and assures there will be no legal battles ensuing between employers and their employees.

“We think that the decision reached by the Senate committee was a good decision,” Union Pacific Railroad Senior Director of Public Affairs Nathan Anderson said. “Because it will help to avoid lengthy and costly litigation over a federal versus a state regulatory, or statutory, imperative.”

With the railroad company already struggling with pandemic-driven supply chain issues, he said the bill would have added another issue for federal contractors who could not defer.

Many Wyoming hospital officials shared his sentiment, as more than half of their funding comes from Medicare and Medicaid dollars. Wyoming Hospital Association Vice President Josh Hannes said under no circumstances do hospitals want to run afoul of the state, but the bills had the potential to put them in conflict with state law.

He said senators listened to those concerns, and it was reflected in the way HB 1002 came out of both chambers.

“I think they understand that this is an incredibly tough issue,” he said.

And with the amendments made by the Senate and agreed upon by the Joint Conference Committee, the only way for the state government to challenge the vaccine mandate is to go to court.

Litigation may include “initiating an action in the name of the state of Wyoming as the party aggrieved by a violation of the Tenth Amendment, or other protections reserved to the states under the United States Constitution, involving federal overreach into rights reserved to the states.”

The action can also be defended on the grounds that the state was forced or coerced into following the mandate due to federal threat of withholding contracts and funding.

The governor and Attorney General’s Office do not only have the approval of the Legislature to initiate action for the protection of the state’s rights, as stated in the bill, but may also join a lawsuit initiated by Wyoming residents. The reasons for those individuals to sue may include being personally injured or having their livelihood negatively affected by the federal vaccine mandate.

This was one of the reasons such a high appropriation of $4 million was made by the Joint Conference Committee. Lawmakers understood not only how long the process may take, but that there may be more than one lawsuit to fund.

“2021 Special Session House Enrolled Act 1 clearly articulates the belief of the majority of Wyoming residents that the decision to receive a COVID-19 vaccine is a personal choice,” said Senate President Dan Dockstader, R-Afton, and House Speaker Eric Barlow, R-Gillette, in a final statement issued Thursday. “Through this special session’s enacted legislation, the Legislature has provided the Governor and the Wyoming Attorney General with the guidance and resources to further address the federal COVID-19 vaccines in the courts.”

Although the special session has concluded, the legal battle has just begun.