Vaccines and Existing Rights

December 4, 2021 

Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos. --George W. Bush

In the legislative meetings last month, legislators were presented with bills and testimony which showed that more could be done to help the public better understand their existing legal rights pertaining to COVID vaccinations.   I hope the following will be helpful to you.

Biden Administration Mandates

On September 9, 2021, the Biden Administration issued Executive Order Nos.14043 and 14042 and announced action by the Centers for Medicare and Medicaid Services requiring that federal employees, the employees of federal contractors, employees of medical organizations receiving federal Medicare and Medicaid funds and employees of employers with 100 or more workers vaccinate against COVID-19 by January 4, 2022. Employers with 100 or more workers may allow employees to test regularly for COVID-19 rather than vaccinate.

Idaho Has Joined Litigation Against the Federal Vaccine Mandates  

Idaho has joined three separate federal lawsuits regarding the Biden Administration’s vaccine and testing mandates. The federal courts temporarily stayed the mandate that all employers with 100 or more workers require their workers to take the COVID vaccine or regularly test for COVID-19. Shortly thereafter the Biden Administration suspended enforcement of this mandate.

Idaho Does Not Have Vaccine Mandates

Idaho law does not require any adult or child to vaccinate against COVID or any other disease. Idaho law specifically allows parents to exempt their children from vaccinating for school for any reason the parent deems appropriate. See Title 39, Chapter 48, Idaho Code.

Idaho Does Not Require or Provide Vaccine Passports

The Governor issued Executive Order No. 2021-04 stating that no part of the executive branch of the state government can require proof of vaccination for someone to access state services or facilities. Nor can the executive branch produce COVID-19 vaccine passports or provide information regarding an individual’s COVID-19 vaccine status to anyone else for inclusion in a COVID-19 vaccine passport.

The Idaho Health Freedom Act

This law asserts that the federal government does not have power over the health freedom of Idahoans. See Idaho Code Section 39-9003(1). Idaho Code Section 39-9003(2) declares that

 the public policy of the state of Idaho, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America.

It is questionable that this Act is enforceable against the federal government because the United States Constitution says that federal law is the supreme law of the land.

Employers Can Condition Continued Employment on Vaccinating and/or Masking

Idaho is an at-will employment state. This means that employers can condition continued employment on a wide variety factors, including but not limited to vaccinating, providing proof of vaccination and masking.

Access to Property Can Be Conditioned on Vaccinating and Masking.

Idaho’s laws on trespass allow those renting or owning property to set the conditions on which others can access their property. This means that entering someone else’s property can be conditioned on a wide variety of factors, including but not limited to vaccinating, showing proof of vaccination and masking.    

State and Federal Civil Rights Laws Offer Certain Protections Against Vaccine Mandates

Two federal laws and an Idaho law together prohibit disability and religious discrimination in several areas, including employment, transportation, public accommodations, communications and access to state and local government' programs and services. See the Americans with Disabilities Act, beginning at 42 U. S. Code Section 12101; Title VII of the Civil Rights Act of 1964, beginning at 42 U. S. Code Section 2000e; and the Idaho Human Rights Act, beginning at Idaho Code Section 67-5901. Individuals with certain medical conditions or religious beliefs against taking a vaccine may be entitled to exemptions or other accommodations related to vaccine requirements established by the federal government or their employer.

Idaho Law Protects the Free Exercise of Religion

Idaho law states that the “[f]ree exercise of religion is a fundamental right” and that “government shall not substantially burden a person’s exercise of religion . . . .” See Idaho Code Section 73-402(1) and (2). See also Idaho Constitution Article IV, Section 1. This law goes on to state that  

"[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:

(a)  [e]ssential to further a compelling governmental interest; [and]

(b) [t]he least restrictive means of furthering that compelling governmental interest."

In other words, a governmental vaccine mandate to prevent the spread of COVID-19 would only be enforceable against a person objecting to vaccination on religious grounds if

·       the vaccine actually prevents spread of the disease,

·      preventing spread of the disease is a compelling government interest, and

·      vaccination is the least restrictive way to prevent spread of the disease. 

For example, if masking adequately prevents spread of the disease, the vaccine requirement could not be enforced against the religious objector.  

Respectfully,

Michelle