With vaccine mandates, Gov. Asa Hutchinson is occupying the same position he’s occupied for much of the COVID-19 pandemic: the middle ground.
That position is, don’t tell businesses either what they must do or what they must not do. Don’t prevent them from requiring vaccinations if they decide they should because of their circumstances. And don’t force them to require vaccinations regardless of their circumstances.
On his left is President Joe Biden’s administration, which last week published its rules for requiring businesses with 100 or more employees to ensure they are vaccinated or, if not, to be tested regularly and wear masks. The rule would be enforced by 1,850 Occupational Safety and Health Administration (OSHA) inspectors monitoring 130 million workers.
In a separate rule, eligible staff who work for health care facilities regulated by the Centers for Medicare and Medicaid Services (CMS) would not have the testing option. In both cases, employees would have to be fully vaccinated by Jan. 4, which means they’d have to get their first shots pretty soon.
On Hutchinson’s right is the Arkansas Legislature, which last month voted to allow employees to opt out of those requirements. That law goes into effect in January.
Hutchinson said the current situation puts employers in a difficult situation of choosing between obeying a state law (which doesn’t include penalties) and obeying a federal rule with fines of up to $13,600 per violation. Federal law, as he noted in a media briefing Thursday, trumps state law. On the other hand, the state law will go into effect in January, while the federal mandate is tied up in court. So whose law do businesses violate? He suspects many will take a wait-and-see approach.
Hutchinson allowed the state law to go into effect without his signature because it would have been numerically pointless to veto it, the Legislature having the ability to override with a simple majority. Instead, he expressed his misgivings.
On Friday, Arkansas Attorney General Leslie Rutledge announced she was joining a lawsuit with 10 other state attorneys general, one of them a Democrat (in Iowa), opposing the OSHA mandate. Rutledge notably has been appearing in public service announcements urging Arkansans to be vaccinated, but she says it shouldn’t be forced.
Hutchinson, who hasn’t supported everything Rutledge has done, supports the lawsuit. On Thursday, he said the federal mandate has constitutional challenges, would be the first such federal mandate in the nation’s history, and would make it harder to get people back to work at a time when the supply chain is already kinked up.
He said he would be consulting with Rutledge regarding the CMS mandate. He’s concerned about losing workers. Department of Human Services Director Cindy Gillespie said the state’s human development centers, which serve severely developmentally disabled individuals, are short 700 staff members already.
Mandates have been shown to increase vaccination rates, as they did at Tyson Foods. The company now requires its employees to be vaccinated after it was hit hard earlier in the pandemic. A congressional report said 151 of its employees died from the virus. The company says it has spent more than $810 million combating it. As reported by the New York Times last week, since CEO Donnie King announced the policy, 60,500 employees have been vaccinated, resulting in 96 percent of its workforce having received the shot.
This all happened before either mandate – the federal or the state – went into effect.
The federal mandate is coming at a time when caseloads in Arkansas are falling and so are vaccination rates, which is not a coincidence. When the disease is more threatening, hesitant people decide their concerns about getting sick outweigh their concerns about getting the shot.
COVID-19 seems much less threatening than it did this summer. We’re either in a lull with another surge coming this winter, or we’re nearing the end of the pandemic phase and headed into the “endemic” phase, when we just have to live with COVID like we do other diseases.
Not knowing the future, we’re left with setting policy now. The governor has staked his claim in the middle regarding vaccine mandates: Don’t tell businesses what they must do, and don’t tell them what they can’t.
Steve Brawner is a syndicated columnist published in 16 outlets in Arkansas. Email him at firstname.lastname@example.org. Follow him on Twitter at @stevebrawner.