Arkansas Seeks to Amend President Biden’s Mandate

On October 13, 2021, Arkansas Governor Asa Hutchinson allowed a new law addressing mandated COVID-19 vaccines for employees to go into effect without his signature. Senate Bill 739’s primary sponsor, Senator Kim Hammer, made it clear that the bill was a response to President Joe Biden’s COVID-19 action plan and the Biden administration’s forthcoming emergency temporary standard requiring employers with more than 100 workers to mandate vaccinations or test them for the virus weekly. Senator Hammer acknowledged in the Arkansas Senate debate that the bill might be found unconstitutional, but he thought it was important to pass the bill to let Arkansans know where they stand. Unlike the recent executive order of Texas Governor Greg Abbott, the bill does not prohibit vaccine mandates but requires additional exemptions with testing alternatives if an employer has a vaccine mandate.

Both Governor Hutchinson and large businesses in Arkansas with their own vaccine mandates had previously opposed the legislation. The bill creates obstacles for federal contractors. Current federal contractor mandates do not allow for exceptions to mandatory vaccination other than for sincerely held religious beliefs or for reasons related to medical necessity. An entity covered by a federal contractor vaccine mandate cannot grant other exemptions without running afoul of its federal charge. As a result, legal challenges to the Arkansas legislation based on federal preemption are expected. Whether the legislation runs afoul of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) vaccine mandate applicable to employers with 100 or more employees is not known, as the OSHA ETS has not yet been published. The OSHA ETS is expected to also contain a testing alternative to the vaccine mandate.

The Arkansas legislation specifically allows employees to opt out of COVID-19 vaccine requirements by means other than the medical or religious exemptions allowed by federal law, and it requires employers to provide a specific exemption process. Rather than being vaccinated, a covered employee has the option to

• produce a negative antigen test or molecular diagnostic test no more than one time per week; or
• provide proof of immunity, including the presence of antibodies (from a past COVID-19 infection), twice per year.

The law provides that if multiple proven test processes are available to an employee, the employee may choose which test is taken. Accordingly, an employee who has had COVID-19 might opt for providing proof of antibodies twice per year rather than submit to weekly testing.

The new law also spells out who is to pay for testing, if testing is the employee’s preferred option. The cost of testing shall be covered through “any state or federal funding made available,” including federal relief funds disbursed from the American Rescue Plan Act, if the employee’s health benefits plan does not provide coverage for the testing. Only in the event that neither of these sources cover the cost of testing will the cost of testing be covered by the employee.

Although the law states that an employee who complies with the requirement “shall not be terminated for mandates related to [COVID-19],” it is not intended to alter any other agreements or affect the employment-at-will doctrine.

Because the legislation did not attain emergency status, it will go into effect in early 2022.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.