Here’s why Idaho hospitals can require the COVID-19 vaccine for employees

Employees working for major health care systems in the Treasure Valley — Saint Alphonsus, St. Luke’s and Primary Health — are required to be vaccinated against COVID-19, the providers announced Thursday.

The moves raised an obvious question: Can they really do that?

“There are no Idaho laws that I’m aware of that prevent an employer from requiring employees to get vaccines,” Richard Seamon, a University of Idaho law professor, told the Idaho Statesman.

In fact, requiring immunizations as a term of employment isn’t new. Saint Al’s already mandated that its workers receive annual flu shots, said Dr. Steven Nemerson, chief clinical officer. In its news release Thursday, St. Luke’s pointed out that it already required employees to get vaccinated for the flu and tetanus.

Idaho still struggles with vaccine hesitancy, particularly around COVID-19 vaccines. But unlike in Oregon, where Saint Al’s can only encourage the shots, Idaho state lawmakers have not passed laws to ban vaccine mandates, although they did try during this year’s legislative session.

Zachary Clark, a spokesperson for the Idaho Department of Health and Welfare, said no Idaho law even addresses required immunizations in adults.

What did Idaho Gov. Brad Little’s ban on ‘vaccine passports’ do?

In April, Idaho’s Republican governor, Brad Little, signed an executive order to ban state agencies from pursuing so-called “vaccine passports,” or a COVID-19 vaccine mandate to receive public services, access facilities or be employed.

It did not ban businesses or private employers from their own policies to require COVID-19 vaccines.

Marissa Morrison Hyer, spokesperson for Little, said the governor believes placing restrictions on the private sector in the way it manages its employees amounts to government overreach.

“Government should stay out of decisions involving employers and their employees as much as possible,” Morrison Hyer said. “Governor Little has advocated for and championed fewer government regulations and mandates on business.”

While the governor can issue emergency declarations, there are some restrictions on executive orders. According to the Idaho Constitution, a governor can’t create new laws or change them via executive orders. Only the Legislature can do that.

A House bill sponsored by Rep. Priscilla Giddings, a White Bird Republican running for lieutenant governor, would have banned companies from “discrimination against unvaccinated persons.” Companies would not have been able to fire, refuse to hire or fail to promote someone for not getting a vaccine.

The bill passed in the House with a 49-21 vote on Feb. 23 but failed to get a hearing in the Senate.

Here’s how Oregon law bans vaccine mandates in hospitals

Saint Al’s also has about 600 employees in Oregon, and those workers won’t be required to get the COVID-19 vaccine. That’s because Oregon imposes restrictions on vaccine mandates, said Mark Snider, spokesperson for Saint Al’s.

Many workplaces in the state can require employees to get a COVID-19 vaccine, but there are some exemptions, according to the Oregon Bureau of Labor and Industries. And those who are exempt include health care providers, health care facility employees, clinical lab workers, firefighters and law enforcement officers.

“A worker shall not be required as a condition of work to be immunized” unless it’s required by federal law or another state regulation in Oregon. The law has been in place since 1989.

How federal law could play out in Idaho

The White House has been vocal about its stance on mandating COVID-19 vaccines for workers — that private employers can and should take the lead, not the federal government.

A federal court case in Texas could mark a significant step for employers’ ability to require vaccines nationwide. One court threw out a lawsuit over Houston Methodist Hospital’s mandate that its employees get vaccinated against COVID-19, but the plaintiffs have appealed the ruling.

Seamon said the initial court ruling is seen as “a really significant decision” that could provide employers with some guidance on their ability to require immunizations.

“The federal government has taken the position that private employers in particular are entitled to require their employees to get the vaccine,” Seamon said. “That (Houston Methodist) case certainly stands for the proposition that the federal government, I think, has been arguing all along.”

Nearly all COVID-19 deaths since the start of vaccinations — estimates are between 98% and 99.5% — have been among those who did not receive the vaccine, according to the White House and an Associated Press analysis.

Public health experts say all three coronavirus vaccines authorized in the U.S. for emergency use have so far been effective against the variants, too.

Morrison Hyer said Little wants to see more people vaccinated.

“Governor Little still urges Idahoans to choose to receive the vaccine because it is safe, effective, and our best shot at continued health and prosperity for the people of Idaho,” she said.

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