(Update, 11/24/2021) AG Derek Schmidt advises employers not to question religious beliefs of employees who claim waiver from vaccine mandate: Read full announcement here.
The Kansas Legislature convened for an unprecedented special session on Monday to consider legislation responding to the federal COVID-19 vaccine mandates. Both chambers concluded their work in just 13 hours. Gov. Laura Kelly has already signed the bill into law.
The House and Senate both authored bills to broaden medical and religious vaccine exemptions, as well as unemployment benefits for workers displaced for noncompliance with the federal vaccine mandates. The bill that ultimately passed (HB2001) establishes that employers may not question religious exemptions based on “theistic or non-theistic moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views.” If an employer does not accept the medical or religious exemption and terminates the employee, the employer could be fined up to $10,000 or $50,000 depending on the size of the business.
This new administrative process allows the Kansas Attorney General to adjudicate and levy the fines. Collected fines would be distributed to the Kansas Unemployment Trust Fund to assist in the payment of unemployment benefits for the aggrieved employees. (Note: This administrative fine process replaces the original proposal which would have created a civil cause of action against the employer.) The law is effective immediately.
Much is still unknown about the implications of the new law for Kansas employers — whether they are independent physicians, hospitals, or any other organization — including details about the administrative fines process.
KMS is working to secure state guidance for physicians on this new law.
This law law likely pits state law against federal law and, if so, means that it may be many weeks (if not months) before clarity is available for employers of any type. Likewise, it is not clear whether this new Kansas law is applicable to either or both of the federal OSHA or CMS versions of the vaccine mandate regulations (as related in our last KMS Update), whether in the short or long term. Currently, the OSHA version of the vaccine mandate regulation has been stayed, so is not in effect; the CMS version of the regulation is currently in effect.
As complicated as the many potential implications of this new law may be, it is too early to have reliable guidance to offer. We are working to secure such guidance and will advise you as soon as it is availed.