Seeking “compromise” and following in the footsteps of other governors, Kansas Governor Laura Kelly signed House Bill (HB) No. 2001 into law on November 23, 2021, broadening exemptions from employer COVID-19 vaccine mandates, permitting the imposition of civil penalties against noncomplying Kansas employers, and providing unemployment benefits to individuals who were discharged for failing to comply with an employer’s vaccine mandate and asserted that their employers violated HB 2001. The new law took effect immediately.
Here is an overview of HB 2001’s key provisions.
If an employer implements a COVID-19 vaccine requirement, HB 2001 requires exemptions for employees and applicants who submit a written waiver to the employer stating that complying with the mandate would:
- “Endanger the life or health of the employee or an individual residing with the employee, as evidenced by an accompanying written statement signed by a physician or another person who performs acts pursuant to practice agreements, protocols, or at the order, direction, or delegation of a physician; or
- Violate sincerely held religious beliefs of the employee, as evidenced by an accompanying written statement signed by the employee.”
HB 2001 requires employers to grant sincerely held religious belief exemptions requested in accordance with its provisions, “without inquiring as to the sincerity of the request.”
HB 2001 allows an aggrieved employee and applicants to file a complaint with Kansas’s secretary of labor “alleging that an employer failed to offer an exemption, improperly denied an exemption request, or took punitive action against the employee.” Upon receipt of any such complaint, HB 2001 requires the secretary to promptly commence and complete an investigation “within 60 calendar days after the filing of the complaint,” to determine, at minimum, whether:
- “The employer imposed a COVID-19 vaccine requirement;
- The employee submitted a written waiver request in accordance with the bill’s provisions; and
- The employer committed any violation of [HB 2001].”
Upon completion of the investigation, HB 2001 requires the secretary to issue a final order containing findings and conclusions, which would be considered a final order for purposes of judicial review and subject to the appeal process as provided in the Kansas Judicial Review Act. If the secretary finds that the employer violated HB 2001, the secretary is required to “provide such order to the employee, the employer, and the [Kansas] Attorney General.”
Upon receipt of a final order finding an employer violation, the attorney general is required by HB 2001 to secure enforcement of the order by filing an action in the appropriate district court to impose civil penalties. “[I]f the employer reinstates the employee with back pay to the date the complaint was received by the Secretary,” the attorney general is not required to file such a civil action.
In any resulting court action, the court is permitted to impose civil penalties based on the size of an employer. Courts may impose penalties of up to $10,000 per violation for employers with fewer than 100 employees, or up to $50,000 per violation for employers with 100 or more employees. In determining the amount of a civil penalty to be imposed, HB 2001 enumerates the following considerations:
- “Whether the employer knowingly and willfully violated the bill’s provisions;
- Whether the employer has shown good faith in attempting to comply with the bill’s provisions;
- Whether the employer has taken action to correct the violation;
- Whether the employer has been previously assessed a civil penalty for violating the bill’s provisions; and
- Any other mitigating or aggravating factor that fairness or due process requires.”
HB 2001 also provides for unemployment benefits, including benefits retroactive to September 9, 2021, to employees who were discharged or suspended for misconduct as a result of their refusal to comply with a COVID-19 vaccine requirement after requesting exemptions or accommodations as provided in HB 2001.
Like the legislation enacted in other states, HB 2001 conflicts with current federal law, particularly related to HB 2001’s requirement that all religious exemption requests be granted without inquiry into the sincerity of the request. Further, the potential assessment and imposition of civil penalties creates additional challenges for Kansas employers drafting COVID-19 vaccine mandates in accordance with the Occupational Safety and Health Administration’s (OSHA) currently stayed COVID-19 emergency temporary standard (ETS).
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.