CHARLESTON — A bill that broadens allowable exemptions for COVID-19 vaccines will go to West Virginia Gov. Jim Justice after the House approved the Senate’s version Wednesday evening.
The bill narrowly passed the Senate on Tuesday following two hours of floor debate that included comparisons to Nazi Germany, claims about vaccine safety and arguments over worker and employer rights.
The vote passed 17-16 in the Senate, with one member — Sen. Eric Nelson, R-Kanawha — absent. All Senate Democrats voted against the bill. They were joined by Republican Sens. Mike Maroney, Tom Takubo, Charles Clements, Charles Trump and Ryan Weld, who split from their Republican supermajority to go against the bill.
The bill was slated to be brought up again in the House on Wednesday evening for lawmakers there to reconcile changes, as the Senate approved a minor amendment to the bill. House of Delegates members voted 66-24 in favor, with 10 not voting.
The bill was passed by the House of Delegates on Friday with a vote of 68-30 and two members absent.
If signed into law as is, House Bill 335 would force any private or public employer in West Virginia to accept religious or medical exemptions for the COVID-19 vaccine if being vaccinated is a term of employment for the business.
It would be the first piece of state code to dictate vaccine practices outside of those for public school registration. It would also be the first time the state codifies religious exemptions for any kind of vaccination.
The current Department of Health and Human Resources webpage on vaccine exemptions reads, “Non-medical exemptions (for immunization) have been associated with increased occurrence of vaccine-preventable disease outbreaks originating in and spreading through schools.”
During Senate debate Tuesday, those in support of the bill argued that it honors personal freedoms.
“This debate is not about whether the vaccine works or not,” said Sen. Eric Tarr, R-Putnam. “This is about the people of West Virginia having the personal choice over their medical decisions.”
Senate President Craig Blair, R-Berkeley, left the podium to join the debate on the floor. He responded to arguments from Democrats in both chambers of the Legislature who say the bill overreaches into private business decisions.
Blair argued the only entity “overreaching” in this situation is the federal government, under President Joe Biden, if it tries to “force” vaccinations on people.
“To say we never do any bills that tell businesses what they can and can’t do is false. It happens all the time,” Blair said. “We do, as conservatives, say the government shouldn’t be overreaching. Frankly, I think (any vaccine mandate) hearkens back to Nazi Germany. Our federal government is using federal dollars to coerce citizens into being obedient to the state.”
Sen. Mark Maynard, R-Wayne, continued the comparison, saying the current debate reminded him of “an analogy.” Maynard then shared a story about a young girl touring the Holocaust Museum and asking at the end, “Why didn’t someone do something?”
“And with all the emails and personal messages we’ve received from our constituents … we all know the individuals we’ve heard from,” Maynard said. “That analogy reminds me of someone doing something, and this bill does something (to protect people from government-mandated vaccines).”
More than 6 million people were killed during the Holocaust. Reports of death following vaccination against COVID-19 are “rare,” according to the Centers for Disease Control and Prevention.
Maroney, R-Marshall, accused the bill’s supporters of “sneakily” pushing it through, as it was never reviewed by a single Senate committee. There were also no public comments accepted for the legislation.
Maroney, a radiologist who chairs the Senate Committee on Health, said the bill was “the biggest piece of trash dumped down the throats of businesses” since he joined the Senate in 2017.
A letter from the state Chamber of Commerce and endorsed by more than 30 health systems, banks and businesses from across the state was shared with lawmakers last week, urging them not to pass the bill.
“Each employer has different needs and each must be free to manage his or her workplace as circumstances require,” the letter reads. “This bill sends a chilling message to employers looking to expand into West Virginia and sets up existing employers for a barrage of lawsuits.”
During discussion Tuesday, Sen. Mike Romano, D-Harrison, asked Tarr why all these groups were speaking against the bill.
“You’d have to ask them,” Tarr responded.
Romano asked why the bill was necessary. Tarr said it would align West Virginia code with federal policy, a talking point repeated by many since the bill was introduced by request of Justice last week.
The bill, however, would be more lax than federal policy.
Under Title VII of the Civil Rights Act, employers are required to accommodate an employee’s “sincerely held” religious belief. They also have the right to decline a request they have reason to believe is not sincerely held, or offer other accommodations.
Employers can ask those looking for an exemption questions on the basis of their objection, how it contradicts their religion or beliefs, what other practices or products they abstain from due to the beliefs and how long they’ve held these beliefs, among other things.
For a religious exemption under HB 335, an employee is only required to have a “notarized certification” showing the employer they hold religious beliefs that prevent them from receiving the COVID-19 vaccine.
Notaries are not responsible for vetting the sincerity of statements they witness and sign, only the identities of the parties involved.
The bill also includes no language outlining whether an employer can decline a request they believe is insincere or what standards are used to justify any request for religious exemption.
There are few major religions completely against vaccines, according to research from the Institute for Vaccine Safety at Johns Hopkins Bloomberg School of Public Health.
In code today, parents looking to get medical exemptions for mandated public school vaccines for their children must get the child’s doctor to submit a medical exemption request form directly to the Bureau for Public Health’s immunization officer.
The request must say exactly what vaccines the child is exempt from, the reason and whether the exemption is permanent or temporary. The state immunization officer then works with the doctor to get any other necessary information and makes a decision themselves on the validity of the request.
HB 335 allows medical exemptions to be signed for an employer by any doctor or advanced practice registered nurse who has examined the person and believes they do not need a vaccine.
And while the bill waters down West Virginia’s vaccination policies — policies that have allowed the state to lead the country in the rate of immunized children — lawmakers also voiced concern about potential legal challenges that could come and unintended consequences for businesses.
The federal Occupational Safety and Health Administration, among other agencies, has yet to formalize its COVID-19 vaccine policies, and other federal regulations could be coming down the line.
Romano noted that hospitals and health centers could lose out on reimbursements from Medicare and Medicaid if policies aren’t in line with the federal government.
Individual businesses against the legislation could explore legal action.
None of that much mattered to Blair on Tuesday.
“I think what we’re doing here today is the right thing to do,” he said, “regardless of what the doctors and lawyers tell us.”