It turns out that Republican legislators, historically aligned with big poultry’s right to operate as it sees fit, have the opposite philosophy when it comes to the question of employer-mandated vaccines.
Lawmakers from both houses met today to discuss employer-mandated vaccinations in a Senate Judiciary meeting at the Capitol. The meeting started at 1 p.m. and was ongoing as of 5:30 p.m., as doctors, lawmakers, lawyers and business owners debated the benefits and legality of requiring vaccines to prevent COVID spread in the workplace.
First, representatives from Tyson Foods and the Arkansas State Chamber of Commerce were peppered for nearly two hours with a barrage of bad faith questions and anti-vax talking points. After a preemptive warning from Sen. Alan Clark noting the hot button nature of the issue and suggesting that those speaking and listening from the in-person audience — nearly all of whom were unmasked — should be “on their best behavior,” the hearing commenced.
Rep. Mark Lowry, who chairs the House Insurance & Commerce Committee, set the tone early, saying, “Employees are the driving force behind our economy. … We need to do everything we can to them to keep working and not be burdened by cumbersome guidelines.”
Randy Zook, president and CEO of the Arkansas State Chamber of Commerce, spoke in favor of an employer’s choice to mandate vaccines for its workforce. “The Trump vaccine gave us a life raft,” he said, and the growth employers had been looking for was “finally here.” But proposals to limit employers from mandating vaccines, he said, open up the chance for negligence claims from consumers, could violate certain OSHA standards, and subject businesses to fines and penalties.
“If employers are unable to ascertain the vaccination status of employees,” Zook said, their ability to protect them would be limited. Arkansas, he said, was a right-to-work state, and “we urge you, beg you, not to jeopardize that or compromise it in any way.
“Stripping employers of the ability to either mandate vaccines or inquire about vaccination status,” he said, leaves them unable to conduct business safely. “I think that science has handed us a solution,” Zook said. Courts have already upheld the right of employers to make employment conditional upon vaccination, he added, pointing to Houston Methodist Hospital, which lost over 150 employees over its vaccination policy.
Tom Brower, senior vice president of Health and Safety for Tyson Foods, spoke next. “I have dedicated my career to protecting human life in the industrial environment.” He pointed to the measures Tyson had taken to “transform” its workplace: walk-through temperature scanners, social distancing monitors, mobile health clinics, onsite vaccination clinics and dividers between employees. Still, about half of Tyson employees remained unvaccinated. After announcing last week that Tyson would begin requiring vaccination for its workforce, about 5,000 more employees had received their first shot, Brower said.
Swiftly, questions from legislators turned the conversation to a familiar melange of anecdotes and disinformation about the safety of the vaccine. Referring vaguely to several laws that prevent employees from disclosing certain medical conditions to their employer, Sen. Bob Ballinger questioned Brower about side effects of the vaccine, who replied, “The risks of COVID-19 far outweigh any of the exceedingly rare side effects that the vaccine could present. I know that 99 percent of the people who are hospitalized with severe illness are unvaccinated, and that 94 percent of the people in ICU are unvaccinated. That 95 percent of the elderly who have COVID-19 in hospitals are unvaccinated. We have determined that the vaccine is the single most effective way to protect our employees and their families.” Ballinger cried “breakthrough case,” and said that the vaccination was merely “therapeutic.” Ballinger insisted that the data about vaccination efficacy was “old.”
Republican senators invoked another popular argument — that workers shouldn’t have to disclose their vaccination status to their employers due to privacy concerns. Sen. Gary Stubblefield questioned the pair, prodding Zook and Brower as to whether they provide religious exemptions for an employee in order to “exercise his constitutional rights.” Stubblefield gestured to the First Amendment and the Bill of Rights as grounds for employees who want to subvert employer-mandated vaccines, and offered some familiar anti-vax talking points: pending [permanent] FDA approval, the possibility that vaccinated employees can contract and transmit the virus. He later said that he “had a lot of problems with these scientists,” chastised Zook for “not speaking out” more vehemently against the United States’ immigration policy and extolled the glories of Ivermectin as a COVID-19 miracle antidote. Rep. Mary Bentley claimed that most adverse reactions to the vaccine went unreported. She opined about a navy ship called the Queen Elizabeth where, she said, “hundreds of vaccinated sailors developed COVID,” and then cited the Massachusetts case where vaccinated people got sick from COVID-19. Clark claimed, falsely, that the health risk from contracting the virus was minimal compared with the risks associated with the vaccine.
Rep. Fred Allen said the focus on the vaccine’s side effects was misdirected. “Every drug in America has a side effect,” he said. He went on to point out that many of the workers by the virus were low-wage workers, and that keeping that workforce safe was essential to the whole state’s well-being. “If Walmart and Tyson cannot get an adequate workforce,” Allen said, “everybody in this room is gonna pay the price. It’s important that we come up with some type of solution to the problem.”
Rep. David Ray asked about Tyson’s thought process in deciding to institute a vaccine mandate. Brower, calmly and coolly, emphasized his belief in “education, education, education,” saying that Tyson had worked to translate verified vaccine information into employees’ native languages to address vaccine hesitancy, instituted peer ambassador programs to answer employees’ questions about the vaccine, and the company’s efforts to to combat not only the delta variant, but the rampant disinformation that employees encountered. Tyson requires masks, he said, and has begun testing employees randomly daily, lest they’ve contracted the virus and are asymptomatic. “We don’t want to lose a single workforce member to COVID-19.”
Zook added that Tyson had cooperated with Blue Cross Blue Shield on an information campaign called “Vaccinate The Natural State,” which advised people to go to their trusted doctors to get educated about the efficacy of the vaccine. He cited Tyson’s aggressive implementation of onsite vaccination clinics, and its offering incentives for getting vaccinated, including paid time off to get the shot.
Sen. Joyce Elliott asked about safety glasses and other requirements in the workplace to protect employees, and asked Zook if he viewed COVID vaccines similarly. “There are all kinds of requirements of employees that can be deemed inconvenient,” Zook said. “There’s a speed limit,” he said. “There are limitations on your behavior. … Stay awake all day. Pay attention.”
Sen. Jim Hendren phoned in, asking rhetorically “whether Tyson was requiring legislators to be vaccinated.” The tone of the hearing, he suggested, was out of keeping with the narrow focus of Tyson’s efforts to vaccinate its own workforce.
“You’re not gonna forcibly vaccinate anybody that works for you?” Hendren asked. Brower said no. “You’re saying that in order to provide a safe environment,” Hendren said, “this is something we’re gonna require people who choose to work at our company do.”
Rep. Nicole Clowney pointed out that Tyson had been among the businesses most highly impacted by COVID outbreaks, and Rep. Justin Boyd asked how many employees work on a factory line that allows little chance for social distancing. Brower affirmed that most of the employees he oversees work in the poultry plant, where dividers have been deemed necessary to establish barriers between employees.
Brower pointed out that vaccinating Tyson employees means that not only Tyson’s workers — “human beings” — are kept safer, but that the consumer can be assured that the product was processed safely.
Next, to the legal nuances of the employer-mandated vaccine question. Brad Nye — legislative director at the attorney general’s office — took the microphone, joined by the AG’s Chief of Staff Brian Bowen and Rob Steinbuch, professor at the Bowen School of Law. Nye said that with a few exceptions under the Americans with Disabilities Act and religious exemptions, there’s legal precedent in the state for requiring employees to take on additional obligations as a condition of employment. “That’s the law in Arkansas,” in a nutshell. Nye affirmed that private entities were different from state actors, and that employers like Tyson enjoyed the option to create a contract with its own employees, like the one it instituted last week relative to vaccination. Bowen cited an early 20th-century U.S. Supreme Court case that held that communities had the right to protect themselves against epidemics of disease which threatens its members. “There is existing case law,” he said, “that private companies, and to certain degrees, the state, may mandate things for health-related purposes. Would that be upheld today? Probably. Maybe.”
Steinbuch countered, arguing that employer-mandated vaccines were unconstitutional, that his anti-mandate litigation was necessary “to restore the authority of the legislature” and that mandating vaccines was a slippery slope. “We’re focusing on masks and vaccine mandates, but the issue is much broader,” he said. “I don’t need anything stuck inside of me any more than I need an involuntary prostate exam.” Steinbuch’s delivery grew more impassioned from there as he declared that he was among the first to get the vaccine in Arkansas, and that he “wears a mask — a real mask, a K-N95,” he added, “not the virtue-signaling” accessories “of the Hillcrest glitterati.” He invoked critical race theory and the recent debate over mask mandates in public schools, calling Tim Fox, the judge who overturned the legislature’s mask ban, “a political partisan who wears a judicial robe.”
The legal experts were asked whether it was legal to coerce someone to get a vaccine that has only temporary emergency authorization, and whether, in that case, the threat of job termination would be considered coercion. Nye said he thought the question resided in an area of law that wasn’t yet clearly settled, but that the FDA and Department of Justice hold that employers are within their rights to mandate vaccines as a condition of employment, so long as the employee is informed of the consequences of refusing the vaccine. Pressed by Ballinger, however, Nye said that he believed that, were an employee to cite religious reasons for refusing the vaccine, an the employer’s inquiry “should stop there.” Bowen said that there was legal recourse against companies who were not honoring religious exemptions in accordance with the law.
Arkansas’s love affair with being a right-to-work state has made for some unlikely bedfellows.
Arkansas Department of Health’s Chief Medical Officer Jennifer Dillaha then took the microphone, speaking to the efficacy and safety of the current COVID-19 vaccines, and anticipated that both Pfizer and Moderna could be fully approved by the FDA in the next few weeks. She detailed the processes by which medical research centers track and monitor the (rare) adverse vaccine effects, and reminded us that adverse effects reported in the Vaccine Adverse Event Reporting System (VAERS) were just that — reports — and were subject to confirmation by the Centers for Disease Control.
Family physician Raines Chaffin said that the problem of vaccine hesitancy could be addressed with patience and proper education. Watching local news, he said, he found himself “angered and offended that the people I’ve taken care of were being mischaracterized, gaslighted, and in my opinion, maligned.” The issue had been overly politicized, he said. Chaffin also railed against the CDC, Dr. Anthony Fauci and the media for promoting the vaccine.
While it’s shocking to see lawmakers with no medical training or experience insult and challenge the expertise of doctors, it happens quite often at the Arkansas Capitol these days. Ballinger suggested that vaccines do little to quell spread and accused Dillaha of using outdated information. Dillaha patiently explained that vaccinations do help prevent spread because vaccinated people are significantly less likely to get infected, and therefore they’re less likely to pass the infection along.
Justin Harris, the former state representative who rehomed his adopted children to a man who later sexually abused one of them, brought his 18-year-old son Isaiah before the committee to talk about the painful and debilitating myocarditis the family believes was a reaction to the COVID vaccine. A parade of people preceded and followed to share stories about vaccine injuries, or to say they objected to vaccines because sometimes aborted fetal tissues are used in their development.
Ballinger said the debate goes beyond what businesses can require of employees, and that he hopes to pass a bill that would protect people in Arkansas from any repercussions if they refuse to disclose their vaccine status. Students in public schools and universities are already required to share such information, and it’s not clear how the bill Ballinger envisions would affect that.
Judiciary committee members voted to study the topic further before staying even longer to listen to more people, many of them citing their Christian faith, speaking out against any vaccination mandates.