How Kansas special session law requiring exemptions to business COVID vaccine mandates has worked

The Kansas Department of Labor has received 350 complaints under the anti-vaccine-mandate special session law, only 10 of which have resulted in investigators finding the employer broke the law.
The Kansas Department of Labor has received 350 complaints under the anti-vaccine-mandate special session law, only 10 of which have resulted in investigators finding the employer broke the law.

After Kansas lawmakers passed restrictions on COVID-19 vaccine mandates in a special session last fall, labor investigators found fewer than a dozen cases where an employer violated the law.

Republican legislators forced the November special session amid political backlash to President Joe Biden's COVID-19 vaccine mandates. The law, which Gov. Laura Kelly signed days before Thanksgiving, required employers to offer religious and medical exemptions if they chose to implement inoculation requirements.

Since then, 350 total complaints under HB 2001 have been filed with the Kansas Department of Labor. Only 10 have been determined by labor investigators to be a case of an employer breaking the law.

"I think a lot of that is due to the legislation. It served its purpose that there was an alternate outcome for the employee and the employer, and there was no adverse action taken against them and they did not need unemployment benefits," Labor Secretary Amber Shultz told the Unemployment Compensation Modernization and Improvement Council.

"That seems like a remarkably low number," said Rep. Susan Estes, R-Wichita.

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"It does seem low, but again I think it's good, that shows that the purpose behind the law was met by the employer," Shultz said. "There have been very few that have not complied."

What happens to Kansas businesses that broke vaccine mandate law?

Shultz said six of the 10 employers found to have violated the anti-vaccine-mandate law have been referred by KDOL to the attorney general's office.

Two of the 10 cases remain in a 30-day appeal period, while two other cases have gone to the courts after requests for judicial review.

One of those six cases was resolved before it reached Attorney General Derek Schmidt's office, said spokesperson John Milburn. The employee was reinstated and received full backpay, which preempts an enforcement action under the law.

Milburn told The Capital-Journal that two cases remain subject to ongoing appeals and are not available for enforcement.

Two enforcement cases ended last month with negotiated settlements, and another enforcement case remains pending, he said.

Shawnee County District Court records show Schmidt brought a case against MWI Veterinary Supply Co., a Topeka distributor of animal health products.

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The Labor Department investigation found that MWI terminated Dolores T. Zolotor on or about Jan. 7 for failing to comply with the company's vaccination requirement, despite submitting a waiver request. The company agreed to a consent judgement "solely for the purpose of settlement and without admitting any allegations ... or any wrongdoing or liability."

MWI paid a $25,000 civil penalty. Zolotor declined an offer for backpay, which would have come from the penalty.

Douglas County District Court records show Schmidt also brought a case against Visiting Nurses Association, of Lawrence.

Labor investigators found that the company broke the law by "taking punitive action against Ms. Gunn by constructively denying her request for a religious waiver" from their vaccination requirement.

Visiting Nurses paid Gunn backpay before the attorney general filed the case, agreed to a settlement without admitting allegations and paid a $1,000 civil penalty.

It does not appear that either employee was reinstated to their old jobs. They both filed their original complaints in January, with investigations closing in March and the court orders filed in August.

What happened to the other complaints?

Of the 340 remaining complaints, 14 are currently active, 30 had the complaints withdrawn and 296 had a ruling adverse to the employee.

Shultz said complaints were withdrawn for a variety of reasons, including fraudulent claims, complainants changing their mind and complainants realizing their case didn't meet the legal requirements.

Labor Department investigators ruled against the employees for a variety of reasons. In some cases, the employer did not implement a vaccine requirement or took no adverse action against the employee. In others, the employee did not request an exemption in writing, was not technically an employee or did not file the complaint themselves.

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"During our investigation, we do look at all the facts, we allow statements to be made by the employee and the employer," Shultz said. "A lot of those, especially in the early days, we had self-employed people filing a complaint against themselves, which they can't do. We've had a lot of fraudulent attempts. We've had a lot of people misunderstand what the law was for and there was no adverse action taken against them."

Lawsuit seeks more detailed records

Stilwell attorney Linus Baker and his wife, Terri, have an ongoing open records lawsuit against KDOL in Shawnee County District Court. The Bakers are apparently seeking contact information for all complainants, suggesting that investigators are improperly siding with employers.

In March, the Bakers requested records of all complaints and final orders, and they received redacted records. The Bakers contend the agency improperly redacted various information, including the names and contact information for all the complainants, as well as contact information for the employers.

They object because KDOL "has redacted all information that could lead to discovery of each claimant's facts and the reasons for KDL denying the HB 2001 petition." The records showed that, as of April 4, KDOL had issued 206 orders, with three adverse to an employer.

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"Employers are virtually invincible — they win 98% of the time," Baker wrote in court documents. "KDL does not want the public to be able to inspect or otherwise investigate its practices and decision-making process."

The attorney alleges that KDOL is "essentially rubberstamping the great majority of all employer denials of religious exemptions."

"The Labor Department seeks to keep the public from this information which essentially bars the public from knowing who had filed HB 2001 petitions or even how to contact their attorneys if they have one," Baker said. "KDL does not want anyone being able to connect dots to its interpretations of HB 2001 with it near 98% rulings in favor of employers and against people with religious beliefs about vaccine injecting."

Nursing student takes case to court, despite never filing waiver request

A separate lawsuit Baker filed in Shawnee County District Court provides apparent confirmation of one of the reasons Shultz gave for KDOL ruling against complainants: that the employee never requested an exemption.

The law explicitly requires the employee to submit a written waiver request stating that complying with a COVID-19 vaccine mandate would violate their sincerely held religious belief. The waiver must include a written statement signed by the employee as evidence. Under the law, nonreligious people with anti-vaccine views are eligible for religious exemptions.

But Baker, the Stilwell lawyer, is contesting that requirement of the law. He is representing Molly Ellis, of Emporia, in a case stemming from KDOL ruling against her HB 2001 complaints against Newman Regional Health, Flint Hills Technical College and Emporia Presbyterian Manor.

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The record contains various points of contention, including whether the employers imposed vaccine mandates, whether they offered exemptions, whether Ellis ever requested an exemption and whether Ellis as a nursing student intern was considered an employee.

Court documents indicate that Ellis did not request an exemption in writing. Despite that requirement in the law, Baker argues that Ellis did not need to request a waiver if her employer did not offer exemptions, which would be "a futile request for a non-existent religious waiver."

This would not be the first time Baker argued a case involving a plaintiff who refused to request a vaccine mandate exemption, and the COVID-19 vaccines are not the only ones they oppose.

Baker, who has sued a slew of state and local governments, previously sued the Kansas Department of Health and Environment secretary, the governor and the attorney general after his wife challenged childhood wellness vaccination requirements for day cares and schools.

The Kansas Court of Appeals tossed the case, finding that the Bakers misinterpreted state law and refused to fill out the forms to request religious exemptions. The Bakers pursued the litigation, despite their unvaccinated son being allowed to attend public school.

How does HB 2001 work?

Under the special session law, HB 2001, employees may file a complaint with the Labor Department alleging an employer failed to offer an exemption, improperly denied an exemption, took a punitive action or otherwise violated the law. Punitive actions include being fired, demoted or reprimanded, among other actions.

The department then has 60 days to investigate the complaint. The investigation must determine whether the employer imposed a mandate, whether the employee submitted a written waiver request and whether the employer broke the law.

Both employers and employees have a right to seek judicial review of KDOL's final order.

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If KDOL determines an employer broke the law, the agency refers the case to the attorney general. That office then must take the case to court to secure enforcement of the order and impose civil penalties.

Smaller employers face up to $10,000 per violation, while larger employers face $50,000 civil penalties.

Under the law, people are considered employees if they are earning a wage, are applying for a job or are a unpaid intern or apprentice.

The law also makes the employees eligible for unemployment benefits.

Two individuals consider lawsuit after being fired for refusing COVID vaccination

Sen. Caryn Tyson, R-Parker, said two constituents are struggling to get answers on unemployment claims after being fired for refusing COVID-19 vaccination.

"I have two individuals that are not getting any answers from the department, they've not gotten a response," Tyson said. "Not a phone call, an email or anything, and they're considering a class action suit."

Tyson later said the Labor Department followed up in an attempt to address the issue, but her two constituents have so far been reluctant to work with the agency.

"The two individuals are not confident enough or comfortable enough to give their information," she said. "They feel like there will be retaliation, and that doesn't speak well of the state or the department."

Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Tidd.

This article originally appeared on Topeka Capital-Journal: How Kansas law on employer COVID vaccine mandate exemptions is working