House Public Health Committee
October 7, 2021
Ladyman [00:00:01] The chair sees a quorum. If there’s anyone in the audience who wishes to speak for or against a bill and they haven’t signed up yet, please sign up on the signup sheet outside. So committee, we’re going to go ahead and get started. We’ve got two items on the agenda today. First item we’re going to start with is SB 731. Senator Ballinger, if you would go to the end of the table. Please introduce yourself for the record.
Ballinger [00:00:45] Thank you, Mr. Chair and Committee. Senator Bob Ballinger, Senate District 5.
Ladyman [00:00:48] You’re recognized to present your bill.
Ballinger [00:00:51] Thank you. To start with, let me just apologize. All of us want to be home. And, and I know that– I know, I mean, like, I realize, like right now, even with some of my friends, I’m not a very popular guy right now. And that’s, that’s, I guess, the way it goes. I’m only doing this because honestly, like, the redistricting is extremely important function that we have– you know, I’m on Senate State Agencies. I picked that committee because I know it’s important, but there’s nothing that is that is driving my constituents crazy and causing fear for my constituents and, and hurting them as much as this issue. So my hope was that the other bill would get the emergency clause, and we wouldn’t need this. The reason why this bill is important even without the emergency clause, which the bill ahead of you doesn’t have the emergency clause. Real short, basically a one page bill. But this would provide some protection for a person who’s terminated when they go and they reapply for a job. It’ll keep it where people won’t, won’t discriminate against them based on their vaccination status. So if you look, the bill itself is real simple. It basically takes and then sets out that a person’s vaccination status when it comes to COVID 19 vaccination is private information. They have the ability to disclose it if they want or withhold it if they want. And then, in the case of an employment relationship, they’re not allowed to discriminate against them based on them withholding their information. So the concept here is as a government, all governments, their really only legitimate function is to protect the rights of the citizens. You know, the Declaration of Independence starts with that, the ability to protect the rights of life, liberty, pursuit of happiness, right? So what we have here is a right that I think is fundamental. It is a God given right. Something that I think in our, in, in our own hearts, we kind of know that. There are certain things that we just don’t ask each other without there being some sort of strange awkwardness associated with it. A lot of it is health choices. That’s, that’s a private matter that innately we recognize that as a, as a right. It’s not something that we necessarily have had to protect because we didn’t see widespread abuses of it. And so I think as a state, =I think it’s become incumbent upon us to pass a law to protect that right because we see people who are essentially being crushed, that they’re utilizing that lack of a protection of a right in order to be able to terminate people, hundreds of people, maybe thousands of people in the state of Arkansas. And not only that, so it’s not even just that they are going to lose their job, which is enough. These people are hurting, and, and I know that you guys haven’t heard from all of them. You’ve heard from a lot of them, but I’ve heard from all of them. I’m like, they’ve all contacted me because of the nature of running the bill. And they’re, I mean, they’re just compelling, terrible stories, like people who are going to suffer a lot of, a lot of loss you know, where they’re going to have to move out of state or they’re going to have to- I mean it’s– and so in spite of not, this not having an emergency clause, which it doesn’t now because it didn’t pass the Senate with 24 votes, it will, when this gets enacted, provide a level of protection for those people who are going to lose their job to enable them to be able to apply for another job. I’m happy to answer any questions. I’m going to keep it as short as I can, but I understand I have no control over that.
Ladyman [00:04:05] Representative Bentley, you’re recognized for a question.
Bentley [00:04:08] Thank you, Chairman. And Senator Ballinger, thank you for bringing this bill. I am not a lawyer, as many in this committee are not. So, can you explain to me what I have heard from my constituents over and over again as a question, why is HIPAA not– why does HIPAA not cover this, and why in the world are they even allowed to ask the question to begin with? What has happened to that right? And can you explain that to me? Because I know I’ve heard that at least a million times from my constituents.
Ballinger [00:04:32] Yeah, I’ve heard that a lot as well. It’s because they’re only covered entities in HIPAA. So medical facilities, facilities that are– that keep records of health care. They are covered entities.And so Tyson is not a covered entity. Walmart’s not a covered entity. You know, whatever x company is not a covered entity. And so they have the ability to request and even disclose information. They’re not– they don’t have the same legal restrictions regarding HIPAA. Now there may be some liability that they would have as far as revealing information that, that could be damaging to a person or whatever. But there’s not– there is no HIPAA– doesn’t– it only covers specific entities. And that’s not most employers.
Ladyman [00:05:12] Yes, you’re recognized.
Bentley [00:05:14] Is there, is there currently any federal law protecting a person’s right to privacy at all that you can see legally? And I’ve just– I’ve been trying to read law, but I’m not a lawyer. So and if you can just briefly tell us if there’s anything currently federally or, or enacted right now that covers our right to privacy?
Ballinger [00:05:31] Yeah. And even though I’m not, I’m not a fan of reading into the, the Constitution rights that are not, not specifically enumerated– that, that runs afoul as to what our founders– I mean, I am a textualist. But the court itself has interpreted right of privacy– that’s the reason why abortion is legal in the United States is because they’ve said that there is a right of privacy in the, in the Constitution. But under the Ninth Amendment, Tenth Amendment, it, it basically leads back for the state the ability to, to protect other rights not so enumerated in the Constitution. But yeah, there are– I mean, there, there are laws associated with HIV that your employers can’t ask about a person’s HIV status. And then there are other rights that protect, you know, gender, race, all that when it comes to employment. And, and frankly, anybody who’s, who employs people understands that you have books, like, stacks of books that depending on how in-depth and careful you want to be that you have to comply with. I mean, ask anybody who runs a hospital how much government gets involved in their business. I have no idea what that timer was for, but–
Ladyman [00:06:40] Rep. Boyd, you’re recognized for a question.
Boyd [00:06:43] Thank you, Mr. Chair. Representative Ballinger– I’m sorry. I’m back in 2015.
Ballinger [00:06:49] I’m still a– I’m still a representative in my heart. You’re good.
Boyd [00:06:51] Senator Ballinger, thank you for being here. Thank you for presenting this bill. I’m still scratching my head a little bit.I mean, you know, I know that you are not a guy who normally, you know, purports a larger government, but clearly this is a larger government. This grows the body of statutes we have. Could you tell us why you believe we need to do that and what the, what the balance is?
Ballinger [00:07:16] Sure. So, you know, anytime that we pass a bill, whether it’s in order to reduce government or grow government, we’re going to have, have a new code section. So that, I mean, that part is, is easy. In this case, there is a new, new limits, limitation or restriction that we can say out there. It’s, I mean, clearly you can be held liable, you can be sued under this if you, if you start meddling in somebody’s what, what I would consider to be, be private business. But like I said, that’s kind of the role of government is that if there is some inalienable right, some natural right, it’s better if that, that if as a society, we just understand our bounds and that society does that on its own without government’s involvement. But government itself is instituted with the intent to protect those rights. That’s the only– that is the only legitimate role of government is to be out there to protect those rights. In fact, I mean, the Declaration Independence is what said, Hey, we’re suffering from this, and why, because the rights– the government should only be instituted to protect rights. And that’s what, that’s what this is. Let’s say, OK, we believe a person should have a right to privacy. This probably is never needed to, to have a code section before, but now we’re in a time where all of a sudden what was, what was– things that we just understood about people, just rights that people had because of, of the pandemic, we’ve kind of went crazy and we’ve just said, you know, OK, we aren’t worried about those natural boundaries anymore. And, and I’m just– and, and you know– I wouldn’t be worrying about this except for, you know, I blame Josh Bryant. You know, he came to me with the issue. We started talking about it and I had a whole bunch of people getting fired. And I, and I knew it wasn’t right. I knew it was wrong that they would be getting canned over something that really is not anyone else’s business. And so we, we worked on trying to bunch– to do a bunch of different things because I want to honor businesses, because I don’t want government involved in business, because I don’t want government to grow, trying to find different ways to figure out how to manage it. And really, the best way to do it, from my standpoint, is not to worry about regulating businesses, not even to worry about creating a new, new protected class, but saying, OK, there are some rights that as a, that as a body, we say, you know, you should have a right to carry a gun. And so we are going to do whatever we can to put laws out there that protects the right that a person will do that. You should have a right to your own information when it comes to your, your health status and where it’s really getting violated is, is in COVID 19 vaccination status. And so that’s why, why– you know, if you want to, if you want to say it’s growing government, if, if– I’m all for growing government if what it is is growing government to stop people from hurting, violating other people’s rights. And one real quick thing is I understand that there is, there is no public, you know, absolute clear line between the federal government requiring or, or asking it to do what it couldn’t do on its own when it comes to some of our big employers. However, when you ask the big employers why they’re doing what they’re doing, it’s all about needing to get more people vaccinated. It’s all about– it’s the same agenda, exactly the same agenda that you’re getting from the federal government. They’re essentially going and carrying out what the federal government is asked to do. And, and honestly, it doesn’t matter to me whether the group of thugs that came in and beat me up are, you know, actually employed by the federal government or if they are contracted with by the federal government to do that. If they’re coming up and violating my rights on behalf of the federal government, they’re still doing it. That’s still government coming in and doing that. And I think that honestly our big employers, what they’ve done is they’ve said we want to be good corporate citizens. We want to be seen as, as friendly. We want to be seen as, frankly, woke. And they are going to do what they can to demonstrate that. And that’s where, that’s where we’re at today. Where we’re at today is, is we’re dealing with this issue that I wish we weren’t dealing with because we have businesses that said they’re going to do that, and they were OK with crushing the rights of my constituents in doing it. And so I- you know, I could fail. But I’m going to do everything I can to try to help them.
Ladyman [00:11:29] Rep. Davis, did you have a question?
Davis [00:11:30] I did.
Ladyman [00:11:30] You’re recognized.
Davis [00:11:33] So, thank you, Mr. Chairman. Thank you, Senator. I guess I appreciate your apology on the front end.
Ballinger [00:11:44] It’s well warranted.
Davis [00:11:46] Well, yeah, I mean, I don’t even know where to start. OK, so I’ve had a bunch of questions, but I got sidetracked on this. You stated, I think– correct me if I’m wrong– that you had got with Rep. Bryant and there were a bunch of people fired, and that’s why you’re here.
Ballinger [00:12:06] Well, it honestly– at that point, when we got engaged on this, there– I don’t know that anybody had been fired. So this was back prior to our special session and that, that whole week we were at a, at a meeting together and he was faced with, with some constituents who were facing it. I was faced with constituents who were facing it. And so we worked with a group of– frankly, a lot of other people to try to figure out how do we, how do we address this? And ultimately, this is the bill that, that it came down to. 719 is what got fired, filed way back during the special session, and then this is basically the same version.
Davis [00:12:44] Follow up, Mr. Chair.
Ladyman [00:12:45] Yes, you’re recognized.
Davis [00:12:49] So, and I get a lot more after this. However, so you don’t know specifically today that somebody’s been fired because of what we’re talking about in here today–
Ballinger [00:13:00] Oh no, I know of–
Davis [00:13:01] –because of a vaccine mandate.
Ballinger [00:13:02] I know of a lot of people who’ve been fired.
Davis [00:13:04] You do?
Ballinger [00:13:04] I’m getting the calls, the texts, a lot of people who’ve already lost their job. A lot of people. Hundreds of people who’ve already lost their job. Now that’s not what– the biggest number is going to come around the end of October, beginning of November with the new wave. But then it’s not over. That’s without the federal mandate coming down. This is about to get real for us. We’re about to see the biggest crisis that we have ever faced. It’s going to be really hard. And so the question is, do we take steps to try to, try to protect it now? Do we take steps– can we take baby steps, because this doesn’t have an emergency clause. Can we do something to try to, to, to offset? My hope is, the OSHA rule, there is no final OSHA rule. And it’ll be immediately challenged as soon as it’s released. My hope is that there will be a lawsuit and that’ll, that’ll be stayed, and eventually it’ll be adjudicated as, as in violation of the Constitution. The other issue we’re– that this– we’re facing is CMS rules, which are not finalized yet but could come out and they’re the same time that people have threatened to file a lawsuit. My hope is that they get stayed and eventually that it, that it, they say it’s an overreach of federal government. They can’t use the power of the purse to dictate their agenda. That’s, you know, established case law. And so my hope is that, that gets stayed as well. But if not, like, if those go into effect, then we’re going to have a, we’re going to have a crisis, and we’ll have to address it. But the reality is, I don’t want to– one, is I don’t want to do nothing because we know that we have federal laws coming down. I want to do everything we can to push back against that when we have the opportunity to do that. And without that, we’re about to face a coming crisis. And we got an opportunity do something or not. And that’s where I’m at.
Ladyman [00:14:51] Representative Gray, you’re recognized for a question.
Gray [00:14:54] Thank you, Mr. Chair. Senator Ballinger, I guess, you know, I, I understand where you’re coming from. And I voted yes, very adamantly on the bill, Representative Bryant’s bill that we passed off the, out of here and off the floor. So I understand wanting to protect our constituents in general and also, you know, trying to find that balance between what works for business and for our constituents. My question, or one of them, on this is you’re hoping that– I think you’re words where you hope is that they get stayed, talking about the CMS regs that they’ll be pushing out. So let’s talk about what happens if they don’t. You have no exclusion in here for that mandate. So let’s take my hospital, for example, about 1,600 employees. Because this is now going to be a civil rights violation. I’m looking at $300,00 times 1,600 employees. That’s like $480 million. So what would you tell my hospital? Either, you either violate state law or you no longer get Medicare and Medicaid, which probably makes up, you know, 70 percent of your total business. What would, what would you have me tell them?
Ballinger [00:15:56] Yeah, I think that that is– I think that’s going to be common in most, especially small rural hospitals. All the hospitals are going to be facing that. And on, on the other bill, I appreciate your help. And frankly, I, I’ve said this before. I mean, you’re a co-sponsor. You helped on that bill a lot. You provided some input that I think was really valuable. And as a House member, you guys kept the emergency clause together. You guys have done everything you’re supposed to do. And now here you are stuck here on a day when you guys should have already been home to, to deal with this. And I, you know, I hate that for you, that you’re suffering from that. But at this point, we don’t have any final CMS rule. So I would not want to legislate guessing about what the rule is going to come out, what exceptions and exclusions may be in the rule and whether or not the rule even becomes law. I don’t want to– I mean, honestly, I don’t want to cave to the feds before we even know what the feds have given us to cave to, right? You know, like, let’s wait until we see what the rule is. Let’s wait and see if it’s upheld, and if that’s the case, then if we’re faced with hospitals shutting down, we’re going to have to fix it. We can’t, we can’t– if that’s, if that is the conflict– now, it’s different with the OSHA rules. OSHA rules are a little bit different because if it is upheld, which I don’t think it will be– I don’t think the CMS rule will be either, but it is more likely the CMS rule will be upheld than the OSHA rule. With the OSHA rule, if it’s upheld as a valid rule, which is not a– there’s, there’s guidance now, but there is no rule. With the OSHA rule, if it’s upheld, then, then you have the, the supremacy clause that would say that our, our law, and if it’s not, however we’re not consistent with it, our law would be subject to the federal law. And so there wouldn’t be an issue there. CMS is a little bit different. It’s possible that we could end up needing to be called in here to a special session or deal with this in a fiscal session if the, if there is a conflict we can’t overcome. But I’m not willing to give up yet. I mean, I’m not willing to say, Yeah, OK, feds, you can do whatever you want. You can require us to mandate vaccines, even though we don’t want to mandate vaccines. I want to give us some tool out there to push. In fact, the conflict is a good thing because then it forces the, the, the adjudication. My hope is that it’s, it’s adjudicated. Nobody, I don’t think anybody in here wants the new, new CMS rule to come in, and most people don’t want the new CMS rule. You know, there will be a lot of attorney generals fighting it. I hope it’s immediately stayed. It probably will be just like the OSHA rule will be. Bring that lawsuit. Everybody, it’s anyone’s listening. Do it down in Dallas, because it’s a good place to bring a federal lawsuit, right? So that’s going to happen. And when that happens, then we’re going to be, we’re going to have some time to work on and think about it. We’ll probably be back here in a special session before that’s ever even some– but if it is, right now, I’ll say, Hey, Governor, I’m on board with calling us down here for, for a special session to deal with it if we got to because I don’t want my hospital shut down. But I also don’t want to give in. I don’t want to cave to this before we even have a final rule to look at.
Ladyman [00:18:56] Representative Eubanks, you’re recognized for a question.
Eubanks [00:19:01] Thank you, Mr. Chair. Senator Ballinger, I have two Mercy facilities, a Tyson facility and two Wal Marts in my my district. And I thank Mercy– I don’t know when they made their announcements, but it’s been, what, six weeks ago at least or, or maybe even longer. And I don’t know. I can’t remember what the deadlines were, but I think it was we’re right on top of them right now. And I had one person contact me in my district. Now, and I’m serious now. I’ve gotten all kinds of texts and emails this week, and I don’t know where all of those are coming from, but a lot of them, most of them, I have area codes that aren’t in my district. But when would this bill go into effect?
Ballinger [00:19:54] This bill would go in effect sometime in early January. I hadn’t actually done the math, but it’s 90 days.
Eubanks [00:19:58] Follow up, Mr. Chair.
Ladyman [00:19:59] Yes, you’re recognized.
Eubanks [00:20:01] I’ve got a text here that I just received, and it’s– and this person says I’m a 20 year career E.R. nurse. I want you to know that I will be fired if this bill does not pass. And I don’t think that’s true. I don’t think this bill is going to protect that person if they are, if they’re already under a deadline. So I’m afraid that there’s a lot of people out there that don’t understand what’s taking place here today. I’m not saying that that’s a reason not to pass the bill. I’m just saying, I think a lot of people are getting a lot of false hope right now because they think that this is going to protect them from what’s going to take place in the next month or six weeks. And I don’t, I don’t think that’s fair to the, to the public out there right now. Do you understand what I’m–
Ballinger [00:20:50] Yeah, I don’t, I don’t know how somebody could have watched the Senate over the last week and not understand, you know, everything clearly. I mean, where would confusion come from? The, the, the the reality is, I think you hit the, I think you hit the nail on the head. Like, there is nothing in this bill that’s going to help anybody under law for 90 days. We lost the emergency clause. We didn’t get all the votes we need. For 90 days under the– now, my hope is because this is a little bit different in the fact that we are protecting a right of privacy. It’s going to be really awkward if they don’t get their policies in place with this before it comes into effect. So a good example is since you’re not allowed to discriminate against a person when it comes to hiring, which is distinctive than the other bill. The other bill’s a great bill, is way better if we could get it in place before people get fired. But, but– and it may help people from– keep people getting fired from the next job. But if a person gets, gets fired– they’ve worked 20 years at Tyson– and I’m sorry, I keep picking on Tyson. But you know, it is what it is. Twenty years of Tyson, they’ve had a great record, showing up on time, great reviews over and over and over again, learned some very specific skills, skills that are not easy to to transmit other places. You know, if they get fired in November and they’re not able to find a job until January, if they come back and they apply for that job– now, I know that Tyson’s normal policy is they don’t hire people that got fired. But if they got fired because they wouldn’t get a vaccination, and you’re not allowed to ask about their vaccination status, as an attorney advising them, there’s a whole list of things you don’t even ask person you’re applying. One of them is going to be, don’t ask about your vaccination status. They’re going to have a hard time since they’re presenting, like, who’s the most qualified? Oh, I’m the guy who’s, who’s ran that machine– in fact, that machine. I’ve worked on and you’ve got to worry about this, this and this. I am clearly the most qualified and you have said I’m the most qualified. So why aren’t you hiring me? Right? So from a purely legal standpoint, they’re going to have a hard time justifying it. So the value of this is that the RN who worked, she’s had great reviews. If she ends up not finding another place because she doesn’t want to take her kid out of her senior year of high school, she has not found another place because she doesn’t, doesn’t, you know, her husband has a good job locally and they don’t want to have to move. She hasn’t found another place by January. She goes back and applies at the hospital. The hospital better not ask her about her vaccination status, or else they could be sued for discrimination. Now they don’t have to implement a policy. Right now, there’s not even a federal pol– there’s nothing, right? So at least, you know, until that comes down– and by the way, let me say this. The federal government knows as soon as they release a final policy, then at that point, people have grounds for a lawsuit. They haven’t given us a final. When was it that he announced the 100 employers or more? It was a while back. They are going to be slow about releasing it because as soon as it comes out as a rule, then you can file the lawsuit and it can be stayed. As, if you leave it out there as the club, as the excuse for employers to use to tell people that they have to get vaccinated then– or that they’re going to lose their, their, their Medicaid money with the CMS rule– you leave it out there, then you don’t have to worry about it getting sued. So my guess is that’s why they’re slow playing the release of it. I don’t know that other than it just makes for a valuable tool for them to leave it sitting around out there. So who knows, if even by January, there’ll be a final rule? I don’t know that one way or another.
Ladyman [00:24:18] Representative Wing, you’re recognized for a question.
Wing [00:24:20] Thank you, Mr. Chair. So we are in a situation where we’ve got stated intent, but nothing firm from the feds with both CMS and OSHA. We’ve got a little bit more indication with OSHA, but still nothing, nothing firm to do. Is it your intention that with this bill, this would give the employees who are fearful of losing their job either a temporary reprieve in the sense that if we pass this, employers may be less inclined to go through with those terminations, or if they do go through with those terminations, that reprieve would be temporary while we make our wishes known? And you mentioned a club that is being kind of dangled about, we have a club too. Is this our club?
Ballinger [00:25:08] You are a way better communicator than me. You should be down here at the end of the table. Yes, no, exactly. And the, and, and look, I, I don’t know how, how good this is as a club. Usually, the smaller guy has a hard time bullying the big guy, right? But it is the tool that we have. It is the thing we have to be able to go out and say, like, in Arkansas, the good policy is that, you know, you don’t ask. And if you do ask, you can’t hurt them because they don’t tell you, that they have a right to to have that privacy. If a federal rule comes down and it’s in conflict with it, let’s hope it never goes in effect. And let’s hope that, like, this vested right that is in an individual, may be one of the tools that a person could use in bringing the lawsuit to say, You know, you are, you’re taking away a vested right that we have. You know, that isn’t going to be what wins it or lose it, but it’s one other thing that we can add to the quiver.
Ladyman [00:26:05] Representative Miller, you’re recognized for a question.
Miller [00:26:09] Thank you, Mr. Chairman. Bob, you know, I think you’re brilliant. I feel smarter just sitting this close to you. But you were touching on this a minute ago, and I want to get into it a little deeper. Let’s say we passed this. OK. And it’s in effect. Let’s fast forward to 90 days or whatever. It’s in full effect. And we have– but we still don’t have any federal, you know, coming down that we’re rebelling against, but we have businesses who are following through with their vaccine policies. What in this bill– are there any punishments for businesses? Are they going to be– are we, are we fining them, doing anything? Is it all a civil, would be a civil action between the employees or former employees or whatever?
Ballinger [00:27:07] That’s right, it would be a civil action that they would bring. So it’s not, it’s not government. There’s no government fines, mandates, no, no audits, anything like that. It’s the individual citizen would have to, utilizing– let’s see, the the paragraph is on page 2, line 9, employee– an employee or individual who’s injured by an employer in violation of this Section shall have the remedies and procedures available in the Arkansas Civil Rights Act of 1993. And so it’s this code section. So the same areas and those discriminations, it sets out the, the civil action. And so it’s the same civil action.
Miller [00:27:50] May I have a follow up, Mr. Chair?
Ladyman [00:27:52] Yes, you may. Go ahead.
Miller [00:27:53] Thank you. Are we– I mean, like you said a minute ago, this seems like it’s another arrow in the quiver to protect which, you know, I think a lot of us want to protect our our constituents from wrongful termination in this area. Do you not anticipate there being civil action taking place anyway? Or is there, is there already, like, with these, you were talking about hundreds of folks that you know of that have already been terminated, are they not– is there any civil action that’s been taken, been filed or whatever that you know of already?
Ballinger [00:28:33] There has been civil action that has been brought that has already been filed dealing with the– on the federal level. There is civil action that is threatened in the state of Arkansas on it. The problem is there’s just not really– I mean, I wouldn’t want to diminish their, their ability to bring a lawsuit. But the reality is under Arkansas law, there’s really nothing that, that gives them a tool. We are an employment at will state, which, which, you know, this doesn’t change that. But what it does change is it gives a civil right that a person has that, that gives them the ability to file that action. So, so, so the answer is yes. I think that there are lawsuits, but even the individuals who are bringing those lawsuits are not real confident that there’s really much that can be done.
Miller [00:29:22] Thank you. Thank you, Mr. Chair.
Ladyman [00:29:23] Representative Boyd, you’re recognized for a question.
Boyd [00:29:27] Thank you, Mr. Chair. Senator Ballinger, you mentioned power of the purse earlier, and I just wanted to try to understand this a little bit better. Thought it was a valid point. So and you’re the attorney in your day job, and I’m the pharmacist, so you probably know a little bit more about it. So my understanding is is when it’s, say, highway funding, that’s a low enough level where the federal government can hold the state accountable to how you got to do this because it’s not enough where the state would suffer severe consequences versus, say, the Medicaid expansion, where it is so much money it would crush potentially our, our state budget. So where this is different, though, is that’s the state government, and this would potentially be a private business. If I have Mercy Hospital or Baptist Health, and they would potentially lose funding because they were trying to abide by state law, how, how does power of the purse figure in in that scenario?
Ballinger [00:30:29] [00:30:29]And I honestly, that is a, that’s a good question and one that I don’t think that we have a real clear answer to. So can they, instead of, like, the Medicaid expansion where they can force the state to, to carry out its, its agenda and under the, the stimulus, right, then they said that, that they couldn’t do that with Medicaid expansion. When it comes to private businesses– now part of that is the Medicaid actually flows through the state. So those Medicaid dollars would be– that Supreme Court, the Obamacare decision, that decision would be actually binding precedent dealing with the Medicaid side of it, I think. You know, depending on the numbers. But the Medicare, from what I understand, it flows directly from the feds to the individual. It causes something that is not real clear in the case law. I think the principle would still apply. Even though we’re not talking about state actors, we’re talking about individual businesses that can you force them, especially when what they’re trying to do is overcome a state law, right, can you force, force pass the state law using the power of the purse? And I don’t know that we know the answer to that. I’m going to hope with our court and with the appropriate district court and that we will be in a position where where it would be set aside. But, but like I said, while I feel real strongly that the, the OSHA rule will be, I think probably the CMS rule will be. You don’t have nearly as clear precedent that it will be, like, like you do with the OSHA rule. So but I’m definitely willing to give it a try, and I’m definitely not, I’m not willing to cave before we even get a final rule on that.
Ladyman [00:32:04] Representative Boyd, let me put you at the bottom of the list. We’ve got other people that haven’t spoken yet. Representative Payton, you’re recognized for question.
Payton [00:32:15] Thank you, Mr. Chair. And Senator Ballinger, appreciate you bringing this bill up. I hear a lot of conversation and to do about what the federal government may or may not do. And I hear a lot of conversation about some businesses in Arkansas. Not all, by a long shot, have already made a decision to require vaccine of their employees. And so the 90 day delay in the implementation of this law might seem too late for those employees. But many other businesses who are on the cusp of making this decision or considering making this decision or being strong-armed by those businesses who have already made the decision. And does this bill give them cover to say we’re not going to go that far because the Arkansas Legislature that represents the people instead of Washington, D.C., has passed a bill and, and so now whenever a business that I’m doing business with tries to force me as a business to require this of my employees, I have a tool to say I’m not going to do it.
Ballinger [00:33:31] [00:33:31]I think that’s a great point. So in the same sense that people are worried about the rules coming down that have not been released yet, as, like, we better we better get in compliance with that, even passing this without the emergency clause because we know it’s going to go into effect at the beginning of next year gives a reason for businesses to say, no, I’m not going down that path because the law in Arkansas is going to require us to do X. And so I think that’s, I think that’s a great point.
Payton [00:33:57] Thank you. Thank you, Mr. Chair.
Ladyman [00:33:59] Rep. Pilkington, did you have a question?
Pilkington [00:34:01] I did, Chairman.
Ladyman [00:34:03] You’re recognized.
Pilkington [00:34:04] Thank you, Chairman Ladyman.
Pilkington [00:34:07] So, what I’m really curious about is we passed this bill of Senator Hammer’s and Josh Bryant’s earlier, where we’re basically giving alternatives, instead of getting a vaccine, you get tested or if you had immunity, things like that. I mean, doesn’t this just completely wipe away that bill that we passed if we pass this bill.
Ballinger [00:34:28] No, it’s two separate code sections. Now, if we pass this bill does, does the other bill become as unnecessary as long as this is held up in court and this remains valid, then, then the other one in theory will be necessary because a person’s not going to be me asking about vaccination status. The question is if, if it is possible that the CMS rule, it is possible that the federal rule may come down and it won’t be too much in conflict with, with it. So what you see is on the federal level and it’s, it happens differently in different departments, but on the federal level, they have a, and they’ll do a testing requirement in lieu of. They’re offering that now is an alternative. If the OSHA rule comes down and they offer a testing requirement, the question will be will the testing be punitive or will the testing be something that’s more flexible, like in Senator Hammer’s bill? So there will be good value to that, even if, even if ultimately the OSHA rule comes down and its upheld, which I hope it’s not. Cross my fingers. Don’t think it’s going to. But if it’s upheld, then this would be in direct conflict with the, with the OSHA rule and the supremacy clause because the rule would have force and effect of law. Then, then the supremacy clause would say that– now let me say this. I think an appropriate reading of the supremacy clause would not, would not render this inapplicable. But that’s not the way the courts interpret the supremacy clause. So this would essentially be unenforceable, but Rep. Hammer’s bill– or Rep. Bryant’s bill and Senator Hammer’s bill could still be in effect.
Pilkington [00:36:00] Follow up.
Ladyman [00:36:01] You’re recognized.
Pilkington [00:36:01] So on Senator Hammer’s bill, there was a sunset clause that we added. But I notice on this bill there is no sunset clause. I mean, that gives me a little bit of heartburn because I think what we notice with the mask ban that we did was there is no sunset clause. And if we ever had a different sort of airborne illness and we wanted to do something like that where our hands are tied without us having to call and have a special session, and that’s the reason why we put in a sunset clause on Senator Hammer’s bill. So can you walk me through the decision not to put a sunset clause on this piece of legislation?
Ballinger [00:36:30] Sure. But I would say, I mean, the, the, the, there’s not, I mean, the sunset clause if we mirrored it with the Hammer’s bill, there wouldn’t be necessarily a need for a special session because we will be in general session again. So their sunset was July of 2023. If I were to put a sunset clause, that would be sometime after the next general session. But what I would say is, you know, two things. There’s not a sunset clause in it because when we drafted it, we didn’t see that as a necessity. While typically, I, I would be up to amendments in order to get people’s votes. Where we’re at, I would be shot by some of my friends if we start amending bills and start sending it back and forth. So at this point, there’s not– what I, what I’ve said to you earlier and I’ll say right now is that if we’re at a point where either this is causing some headaches and problems needs to be modified or needs to be repealed altogether, when we get back into a general session, you know, I’m game to play on that. We’ll know by the time we get there. And that’s the same way that Senator Hammer’s bill, if we want to keep that, those protections in place, then we’ll have to actually deal with it during that, if, if you and I are here in 2023 when we get back in the general session.
Pilkington [00:37:37] Thank you, senator.
Ladyman [00:37:40] Representative Boyd, you’re recognized for a question.
Boyd [00:37:43] Thank you, Mr. Chair, for your tolerance with my questions. I do appreciate it. Senator, I do have another. This is a legitimate, serious question.
Ballinger [00:37:51] None of the rest of them were legitimate, though?
Boyd [00:37:53] I think all of my questions have been legitimate and serious, but I wanted to qualify because like everybody else, I mean this, this effect– this bill has significant impacts on the way we do business in Arkansas and especially health care business.
Ballinger [00:38:07] Right.
Boyd [00:38:09] I’m especially in tune to health care business in case you might not know that.
Ballinger [00:38:12] Yeah, I don’t know why, but yeah.
Boyd [00:38:13] OK, so as an employer, if I wanted to offer an incentive to give the vaccine, if I wanted to offer a $200 bonus, is there anything in here that would prohibit me from doing that or would the employee still have the ability, if I want to say, Hey, if you’re willing to tell me, or does this basically even throw out incentives? Could you help me explain what the practical implication of that is?
Ballinger [00:38:40] So from a practical implication, it may it may cause incentives– it may make it hard. Because if the incentives feel like it’s part of, part of work and not purely just some additional bonus, then a person could argue that they’re being retaliated against because they didn’t provide their vaccination status. And it doesn’t go– it does– it isn’t just a person who is not vaccinated has a right to, to withhold– if a person is vaccinated, they have a right to withhold their vaccination status either way. So it would make it where, where an incentive program could get to the point where I mean, being honest, if I were advising a person, I’d say probably don’t put together an incentive program based on the vaccination. Look for a different way to do it. But don’t do it based on the vaccination. And one of the things that I think is really important that we do talk about is sometimes we talk about vaccinations like it was six months ago, back when vaccinations were 95 percent effective to keep you from getting the virus, right. We all thought that. We all thought when it first came out, I mean I’d say I thought that and most people thought it was going to keep you from getting the virus. I mean, everybody agrees that– I think the Pfizer study just came up and said that after two months, you lose a lot of the benefit to keep from getting the virus and to keep from causing other people to get the virus, right. You still contract the vi– now, you’re probably a lot less likely to go to the hospital, a lot less likely to get seriously sick, a lot less likely to die. I mean, some people may dispute that. But, but I think just from the evidence, it looks like it probably has some therapeutic benefits. But, but it isn’t, it isn’t the thing that keeps people from getting, spreading the virus. That, there may have been true under the alpha variant or alpha virus. But under the Delta variant, that’s not the case. And so where we’re at today, it isn’t really, you know, like we used to have 15 days to stop the spread. And then when you had vaccinate to stop the spread. It really is vaccinate to keep you from going to a hospital. Which is a good cause. That’s great. But, but honestly, as businesses, what’s their incentive? I mean, I mean, honestly, as a guy that has a little bit of girth, you’re probably better off, you know, creating incentives for diet programs for people’s individual personal health. You know, great programs so they don’t eat cheeseburgers and drink soda pop, right? There’s, there’s other reasons to try to address a person’s individual health that are also extremely important. So anyway, I’ve kind of went down a rabbit hole, but to answer your question, it probably makes it where offering an incentive program– and I’m not, you know, this is not necessarily my area of the law, but I do see where there would be questions about whether it should be done, even if you can do it.
Ladyman [00:41:22] Representative Gray, you’re recognized for a question.
Gray [00:41:25] Yeah, thank you, Mr. Chair. Back to hospitals again. So I’ve had a hospital text and they actually do have to report COVID status to CMS already effective October 1st under the inpatient quality reporting.
Ballinger [00:41:38] [00:41:38]Vaccination status, you mean?
Gray [00:41:39] Yes. Well, what did I say?
Ballinger [00:41:41] You said Covid status.
Gray [00:41:42]With their COVID vaccination status along with their flu vaccination status. So they’re going to have to ask.
Boyd [00:41:47] Is that by rule?
Gray [00:41:48] Yes.
Ballinger [00:41:49] So I would have to see– I’d have to see the rule on that. And, and once again, if it is a federal rule that has the force and effect of law, then it will either be interpreted consistent with the law or it be interpreted inconsistent with the law and it would have supremacy over what we pass. So at this point, I have not, not seen any specific rule that requires the vaccination status.
Gray [00:42:13] OK, just a follow up.
Ladyman [00:42:14] Yes, you’re recognized.
Gray [00:42:15] Thank you. With that interpretation, would that come out in a lawsuit that was filed between an employee who claimed discrimination? Or how would that, how would that get interpreted, I guess?
Ballinger [00:42:24] So either way. So someone, if someone challenged the law itself, if someone had had challenged in that, just, you know, honestly, like, I have been asked multiple times in all the bills to carve out health care. When, when we talk about the employees and trying to provide the protection, there is nobody that pulls at my heartstrings more than that nurse who’s been working in the COVID unit for a year and a half, right? And, and so if we’re not going to offer that nurse who’s been working the COVID unit a year and a half– and let me say this, among the most educated people, you know, you know what sector is the most likely to not want to get the vaccine? It’s health care. And so, you know, the reality is these are people who aren’t stupid. They’ve thought about it. They’ve weighed the cost benefit. And they’ve said, I think it’s better for me not to get the vaccine. And they have been engaged. They’ve been the frontline. There are heroes. We all agree they’re our heroes. Don’t can them. Don’t fire them now. Find some way to do it and don’t fire them. And, and there may be a better way to, to manage this and do it. I’ve wrestled with that. I’ve tried to find it. In the end, it’s just giving them a right to protect their own privacy. And that’s the way to keep them from getting fired. And, and so, you know, if during the special session, someone has a better idea, I’m all in. Let’s do it. Put it on the call and we’ll get after it. But otherwise, I don’t want to leave here without providing this.
Ladyman [00:43:55] Rep. Pilkington, you’re recognized.
Ladyman [00:43:58] Thank you, Chairman Ladyman. Senator Ballinger, once again, I’m going back to Senator Hammer’s bill that we passed earlier. So one of the issues I brought up during discussion was my worry was because we didn’t have the emergency clause that we would force businesses to feel like they had a 90 day window to enact mandates on their employees so that when January came around and there was the federal law and this went into place that they could already have basically in a place that they’re not in conflict with federal law and then they don’t have to be in conflict with state law because they already did it before the law was in effect. My concern with this one as well is because we do not have an emergency clause on it that it will be kind of the same situation that in trying to protect the employees, we’re going to end up having a lot of companies feel that their hands are tied. So they’re going to have to mandate and say, Well, you know, the Legislature did this and we’re in this by between federal and state policy. So we’re going to have to go ahead and do this so that we’re not going to find ourselves in a lot of litigation, you know, because unfortunately we don’t have tort reform here in the state. But you know, that’s, that’s that’s a concern I have. You going to talk about that? Walk me through it.
Ballinger [00:45:00] You’re right. This bill is better with the emergency clause. Wish I could be presenting it with the emergency clause. I’m not. The, the answer is there could be some, some businesses in particular with, with the Senator Hammer’s bill that we worked on closely, which is a great bill. But that a person fire the people before you ever get– the law goes into effect in order to make sure that you don’t have to worry about that problem. This would make that a little difficult. Because if you fire a person based on their vaccination status, you also can’t discriminate against a person in hiring. So if you fire someone, you better not post that job or a similar job, because if you do and that person comes back, you hire them. And if you don’t hire them, you’ll be subject to a lawsuit. So it makes a little more awkward to just can them if we have this in place because they have an absolute right– I say absolute. There’s no absolute rights. But they have a right to privacy that gives them the ability to decide to disclose or not. And if they don’t, they have the ability to file a lawsuit.
Pilkington [00:46:01] Follow up.
Ladyman [00:46:02] Yes, you’re recognized.
Pilkington [00:46:04] So that sounds all well and good, but here’s my concern is if we terminate an employee and we write failure to follow policy, then when that, that’s on that employee’s record. So when they come back and they pull up that employee’s record, and it made it say nothing about COVID, it just says failure to follow policy. I mean, you could– I think a company could easily say, Well, you know, we didn’t know. We just said the reason they were terminated earlier was failure to follow a policy. We didn’t know whether that was dress code or coming in on time or COVID vaccination status. And that’s going to be a way they’re going to get around this. So–
Ballinger [00:46:36] [00:46:36]The question in a lawsuit would be what is that policy? And if that policy deals with COVID 19 vaccination, you’ve discriminated against them. So I’m telling you what they will need to do is they need to fire them for some other reason altogether. And they better make sure that just like if you, if you want to fire someone because of their religion, because they’re Christians and you don’t like Christians, you better find some other reason to fire them besides for the fact they’re Christians and you better make sure it is, it is written up clearly in, in, in your, your books. Because if it’s not, you’re opening yourself up to a lawsuit, right? So I mean, ultimately, if they got fired, especially with this coming on and they got fired based on their vaccination status and they come back and they apply for a job, you better completely disregard that. You better disregard the policy that they violated because that policy is now under the law discriminatory and, and can’t be violated. So that would be– that’d be like from a, from, like, if I were counseling an employer, that’s what I would tell them.
Pilkington [00:47:34] Thank you for the clarification, senator.
Ladyman [00:47:35] Rep. Payton, you’re recognized.
Payton [00:47:40] Thank you, Mr. Chair. Senator Ballinger, it seems like sometimes we get stuck on one side of an issue. We’re talking about businesses that are firing people for not being vaccinated. In the absence of this law, I, as a business owner, could go home and fire anybody that is vaccinated. Now, the question is, why would a business want to do that? So if you’re a business with a lot of employees and a new hire comes on at the bottom of the pay scale, and then as they work five, 10, 15 years, there’s raises that take effect and that pay scale changes. So it’s economically beneficial for a business model like that to find a reason to fire tenured employees. So in the absence of your bill, is it your understanding that current state law would allow me or any employer to fire their employees because they got vaccinated when all they were doing was trying to protect their self and their family?
Ballinger [00:48:53] Yeah. Outside of– there’s nothing in the law that, that would prohibit that. And so you would be in the same situation as the people who are being fired because they’re not vaccinated. And it’s not a very good place to to try to enforce your right.
Payton [00:49:09] Can I follow up?
Ladyman [00:49:11] Short follow up. Quick, short follow up, please.
Payton [00:49:15] OK. Never mind, I’m not going to follow up. Thank you, Mr. Chair.
Ladyman [00:49:18] All right. Members, members, we have 16 people signed up to speak for and against this bill. We’re, we have another bill to hear. So try to keep your questions precise and answers, please.
Ballinger [00:49:35] Can I just address, like, for the folks who want to see this bill passed? Let me just say, like, the less, less testimony for it, probably the more likely you’re going to pass the bill, honestly. Now there’s a lot of people who came. They have the ability to, to address their government. Everybody has the right to come. But the reality is this is an issue that has been, like everybody knows basically where they, where they stand on it. So I don’t want to, I don’t want to dissuade anybody from coming and doing what is their absolute constitutional right. But at the same time, you know, the truth is, I value your time. And if the people who come and testify will do the same, it’d be good.
Ladyman [00:50:15] Representative Cloud, you’re recognized for a question.
Cloud [00:50:19] Chairman Ladyman, I’ll defer to your request and withdraw my question. Thank you.
Ladyman [00:50:24] Representative Cloud, you have not asked a question. So I’d recognize you if you want to ask. Go ahead.
Cloud [00:50:29] Thank you, chairman. And it won’t take a long time, I don’t believe. Senator, I’d just like your opinion, your legal opinion, if you would. Page two, Line 12, The Department of Finance and Administration may establish and not quite to my question yet, but I think that that also means that it may not establish. And so here’s where I’m going with my question. We’ve been given a handout, a legislative impact statement, and it says the consultant has advised that the state may not be able to use ARPA funds. So I’m wondering, could that also say that they may use ARPA funds? Thank you.
Ballinger [00:51:12] Yeah. So, so I think that, that, that is probably a fact that we’re going to have to have if we’re going to set this up. The idea is that if there are people who are not made whole through the ability for whatever reason because of bankruptcy or whatever that there may be a program set up through the state with restitution using these funds. We’ll see if that’s possible. But honestly, you know, we included that in there to make sure that it fit within the resolution and also that it could provide a tool that could provide some help if, on the other hand, they couldn’t get it through the, through their employee, employer. So that’s– I mean, the answer is yes. Like, it could. Who knows? The consultant didn’t say absolutely not. And if it is, that will be a great use of the funds in my mind.
Cloud [00:51:58] Thank you.
Ladyman [00:51:59] Representative Miller, you’re recognized.
Miller [00:52:03] Thank you, Mr. Chair. Senator, what– do you know of, of any businesses or anything that’s happened in the state before this, before the last, you know, two years that have made employee mandates concerning, you know, flu shots or any other type of vaccine or preventative deal? And, and, and the other part of that is, do you know of any action that’s ever been taken by the state to that effect, to deal with any of that?
Ballinger [00:52:38] So the answer is, is yes. There are some health care providers that has mandated the flu vaccine. Typically that provided really broad exemptions. Even the Department of Health has mandated the, the flu vaccine. And, and, and you know, the to the extent of the state action I know about is one employee who had religious exemptions that was requested and was kind of being retaliated against by the Department of Health, worked with the Department of Health and got that, got that fixed. But the, but, we’re in a, like a different world, where things are so much more broad and they aren’t granting the exemptions. People are applying for them and they’re just not getting them. And I don’t mind, I mean, I’ll be completely honest. Like, I let it be known with the Tyson and Walmart and actually Mercy that if they would broad, grant broadly the exemptions so that people weren’t getting fired, like, I wouldn’t necessarily see the need to bring the legislate, legislation if people weren’t going to get fired. Now, that was before the federal mandate was coming down and so the problem is going to be a lot bigger. But the reality is they have no interest in that. You know, they, they– I mean, I have a friend who worked for one of the big employers who was in H.R., and he was told by Home Office to tell every employee that they would grant their religious exemption. Their accommodation was one year unpaid leave, which nobody would agree that’s a reasonable accommodation. No court would interpret that. That’s being fired. And that’s what their– and it was basically an additional slap in the face and saying, Yeah, yeah, yeah, yeah, your religious exemption, sure, sure, sure, we’ll accommodate you. Go home. We’re not paying you. And that’s, I mean, from my standpoint, we’re just in a different place than, than with the flu vaccine because it’s hitting our people harder.
Miller [00:54:24] Thank you. Thank you, Mr. Chair.
Ladyman [00:54:27] All right, seeing no more questions. We do have nine people signed up to speak against the bill. Seven to speak for the bill. And those of you that have signed up, I will say you need to keep your comments short and to the point, if possible. Otherwise, we may have to limit the discussion because we’re just going to simply run out of time. So with that, to speak against the bill, Mike Preston. And Jim Hudson. If you all would introduce yourself and who you represent for the record.
Preston [00:55:12] Mike Preston, Secretary of Commerce.
Hudson [00:55:15] Jim Hudson, Department of Commerce.
Ladyman [00:55:17] You’re recognized.
Preston [00:55:19] And appreciate the time. We’ll try to be quick. Obviously, as the person who’s charged with recruiting businesses and industry to the state, placing undue burden on businesses, making it harder to operate doesn’t help us become more business friendly. And if I’m another state, I’m probably watching this and going to use it against us in some of these competitive projects, not to say the least about the existing businesses that we’re dealing with day in and day out and our many government contractors that we do have here in our state, most of whom are small businesses. But more specifically, the problem with the bill is that it’s more broad than preventing a vaccine mandate by employers. Employers may have a legitimate need to know vaccination status during a COVID outbreak in order to address public health measures such as a quarantine. This takes that away. It does openly conflict with existing federal requirements, some of which are already published for Arkansas companies who hold federal contracts, many of whom are small businesses and has no plans to mandate a vaccine. They are now being forced to by the federal government. This bill would force them out of compliance with the executive order and lose the federal contract. This essentially is going to put our small businesses out of business, and I certainly don’t want to see that happen. And I know Mr. Hudson wanted to speak to some of the existing rules that are in place.
Hudson [00:56:35] Yes, very quick if I can, Mr. Chairman. Just to elaborate on the federal contract provision. I do think there’s a misconception out there that all the federal stuff is coming down the pike many weeks or months from now. We have to recognize that as it relates to the federal contracting provision, that is already effective. Two weeks ago, the GSA published guidance on that. And so if you’re a federal contractor covered by that, you have to be taking measures right now to ensure that your workforce is fully vaccinated by no later than December 18, 2021. Now, that’s not a rule. The federal government is a party to a contract. And as any contracting party can do, they can say, here’s what we’re going to require you to do as a contracting party. And so if you’ve maybe got a concession with, with the Corps of Engineers on one of our great lakes, and the Corps of Engineers is going to require you to have in your contract with them a vaccination requirement or you’re going to lose your concession. If you, you know, running a kind of maybe a custodial business, you know, cleaning one of the spas down in Hot Springs on federal land, you’re going to be subject to this vaccination requirement. And if you don’t comply with that contract clause, you’re going to lose that contract. That’s not in terms of a penalty, like a rule that says you’ve got to do something. That’s just a federal government saying, if you’re going to do business with us, we’re going to require you to do that. I’m not advocating for that. I don’t think it’s necessarily a good idea, but it is the reality as it exists today. And so all the discussion about OSHA coming in a few weeks is true. But the federal contract requirement is true today. And then very quickly in terms of question Representative Pilkington asked earlier, which is a great question. This body and the Senate worked very hard, I think, on HB 1977, on Senator Hammer’s bill as well. I see this bill hopelessly incompatible with that bill. Because HB 1977 assumes that you can have a discussion about one’s vaccination status, that an employer can require a vaccine and the employee can say, I’m opting out of the vaccine and I’m going to go through a testing regimen instead. This particular bill says I cannot force her disclosure. So the whole protocol that exists in HB 1977 no longer works. So in terms of the sponsor statement earlier, if you know there’s a better idea, he’s open to it. I think y’all have already found it. And you’ve already passed it. You already have it. And with that, I think we’ll take any questions you may have.
Ladyman [00:59:15] Rep. Wardlaw, you’re recognized for a question.
Wardlaw [00:59:17] Mr. Hudson, you’re chief legal attorney over there and oversee workforce. So, I’m in the health care business. It’s well known. I mean, it’s been published on the front page of the newspaper what I do. But in that business, we’re going to be required by executive order, by taking Medicare and Medicaid money to have every employee be vaccinated. We don’t see, we haven’t seen the rules from it, but we do know there’s an executive order. CMS already asked that they disclose their vaccination status. So we have to do those things to get paid, period. And what are we going to do if this bill passes and we’re found liable under this bill? So we pay two years of back pay to $300,000, whatever that judge or jury finds us guilty of being liable. How are we unliable by following the federal rules, which are what we have to follow?
Hudson [01:00:14] Rep. Wardlaw, I think at the end of the day, folks are going to have to follow what the federal guidance says. The consequences of not doing that are too severe for a business or for a nonprofit. Many of our hospitals are non-profits. You know, I think in between, you know, the, the moment where this bill gets passed and all that gets sorted out, there are a lot of lawyers and tall buildings in Little Rock who are getting ready to make their Christmas list right now because they’re the ones who are going to have to go figure this stuff out.
Wardlaw [01:00:42] Follow up, Mr. Chair.
Ladyman [01:00:44] Yes, you’re recognized.
Wardlaw [01:00:45] So I, for one, totally disagree with the president’s executive orders 100 percent. I think it’s an individual choice and it should be. But I’m not in Congress. OK. I’m in the state legislature. So fixing those lawyers’ Christmas list is not what I’m here to do. And I heard the sponsor sit down there a while ago and say that we want to protect our employees. Do you see this as an employee protection or do you see this as a lawyer getting a job?
Hudson [01:01:15] Honestly, and I think, I’m sympathetic to, to all the hard stories that we’ve heard, but I don’t think that ultimately we’re going to be able to avoid this very hard situation for folks. And I think it’s conveying a false sense of hope that the situation is going to be dramatically different. Now, I do think in HB 1977, y’all worked hard to create a mechanism where those two points of view can coexist.
Wardlaw [01:01:44] Thank you.
Ladyman [01:01:45] Representative Pilkington, you’re recognized.
Pilkington [01:01:49] Thank you, Chairman Ladyman. Secretary Preston, you made comments that businesses will be less likely to come here to Arkansas because of this bill. I find that a little offensive because during session we heard that constantly that that would happen if we pass conservative legislation. And yet the Tax Foundation said that we’re in the top 10 states to move to. Do you have any evidence to back out, back up that outlandish claim or is that just your personal opinion?
Preston [01:02:20] It’s my opinion.
Pilkington [01:02:20] I haven’t heard of a single employer say they’re not going to come to the state of Arkansas because of this. Has a single employer said they’re not coming to the state of Arkansas because of this?
Preston [01:02:29] I’d say that, you know, the bill was just filed. So I don’t think a lot from out of state have had an opportunity to look at it. I will say in our conversations in the last week to week and a half with businesses and with consultants, it’s a concern because it’s something that just paints Arkansas in a negative light in our ability to support businesses. So it has been a concern.
Ladyman [01:02:54] Representative Gonzalez, you’re recognized.
Gonzales [01:02:58] Thank you, Mr. chair. The two of y’all sat down in the same spot a day or two ago and spoke against House Bill 1977 and mpw has your opinion on that bill changed? Do you now think that’s a good bill because it seemed like you were speaking for it just a minute ago?
Preston [01:03:15] Well, we, we were speaking– and I’m getting, maybe the bill’s confused, but I think it was Senator Johnson’s bill–
Ladyman [01:03:21] Excuse me just a minute. Folks in the audience, don’t talk to any of the representatives at the table while we’re in session, please. Proceed.
Gonzales [01:03:30] Specifically, Mr. Hudson, I think you mentioned that it was, that it had been worked on and it was a good fit. I forget your exact words, but it seemed like you spoke in favor of the House bill 1977 about this one?
Hudson [01:03:44] Yeah, I think in my previous comments, you know, I have expressed the concerns about 1977 that we had. And I think I’ve acknowledged, I think in this committee, that I appreciated so much Rep. Bryant’s hard work to reach out and dialog about the concerns and that were incorporated in the bill. My main concern with the bill the other day was the emergency clause and the desire to get some more time for employers to be able to implement this. And I think that issue has now being addressed.
Ladyman [01:04:14] All right, seeing no more questions from committee, thank you for your comments. Speaking for the bill, Sarah Dunklin, if you would go to the end of the table. Please introduce yourself and who you represent for the record.
Dunklin [01:04:33] Sarah Dunlkin, first congressional district chair, Republican Party. And I do realize this is not a partisan issue. I did want to just update you all as far as where we stand on this issue. The 30 counties of the 1st Congressional District, along with other counties such as Drew and Washington counties, and I know that this will be going through the 3rd District as well this weekend, and it has been submitted to the state party and is expected to pass there. It’s a resolution supporting full health care freedom, and two of the main points do, are perfectly in alignment with this bill. Of course, those two are anti-discrimination for not being vaccinated. And also, you know, it’s don’t ask, don’t tell support for that. So just in case you wondered where, where, where people are, what the feeling is out there, it’s definitely in support of both of the bills being heard today.
Ladyman [01:05:43] Any questions? Thank you for your comments. OK, to speak against the bill. Matt Gilmore. Please introduce yourself and who you represent.
Gilmore [01:06:05] Matt Gilmore, Department Health.
Ladyman [01:06:07] You’re recognized.
Gilmore [01:06:08] Thank you, Mr. Chair. And I don’t want to belabor some of the points already made in this, in this committee this afternoon, and I appreciate your time and your attention. We’ve got a couple of concerns. The infection control processes the hospitals and health care entities have to keep in place. This could run afoul with that with health care and some of the rules that will be coming down, as we’ve discussed in here. And then also, again, I think that, you know, healthcare entities, businesses need, need the freedom to do what they think is necessary to protect their employees, their patients, their customers, and business. So I don’t take any more of your time. I know y’all have had a long day and I appreciate your attention to my comments.
Ladyman [01:06:45] Any questions from committee? Seeing none, thank you for your comments.
Gilmore [01:06:49] Thank you.
Ladyman [01:06:50] Speaking for the bill. Jaquette Martin. I probably didn’t pronounce that right, but– Jackie Martin, OK. Please go to the end of the table and introduce yourself and who you represent for the record.
Martin [01:07:09] Thank you, Mr. Chairman. My name is Jackie Martin. I’m sorry, but my hillbilly mother got real fancy with the spelling of my name. I am the state director for Convention of States in Arkansas, and I know many of you support our effort. Our main thrust as an organization is self-governance because that was what our found– our country was founded on. I have sat here the last hour and listened to a lot of questions, a lot of testimony, and Mr. Ballinger has done a wonderful job of presenting the bill. My main concern is that commerce and corporations, their rights and their purpose in existing is superseding the rights of the individual. That’s what I’m concerned with. This happened one time in history. It’s called corporatism. It happens to be a feature of fascism. It is the method in which Mussolini took over Italy in the 1920s. I see the same thing happening here. It is a major concern that I have. It is not constitutional for President Biden to issue a mandate mandating corporations push the vaccine, but he’s using that method because he knows it’s unconstitutional. And we need to make sure that it stops at the state line. There’s a reason why our founding fathers created federalism is because they fought a tyrannical king and they didn’t want to have to do it again. But we are at that cusp and we are looking to you, our state legislators to stop the snowballing from the federal government to the state. That’s why we elect you. We have a 10th amendment to protect our rights as citizens of the state of Arkansas. That is my main concern. We have a lot of education that we have to do in working with the people and how our government is supposed to function. But the main governance has to start with us, the individual, and you’re taking that right away from us if you allow corporations and commerce departments and attorneys to supersede our rights. So that’s all I have to say.
Ladyman [01:09:26] Any questions from committee? Seeing none, thank you for your comments.
Martin [01:09:30] Thank you.
Ladyman [01:09:33] OK, to speak against the bill, Mark White. Please introduce yourself and who you represent.
White [01:09:45] Thank you, Mr. Chairman. Mark White, Department of Human Services. As with Mr. Gilmore, I don’t want to belabor a point that we’ve already talked about before. I do want to make clear, when I talked with you earlier about some of the other bills, we talked about the things we don’t know. That we’re waiting for a rule from CMS, and we just don’t know the details. And so, for example, with Senator Bryant’s bill, it may conflict. It may not. We just don’t know for certain yet. With this bill, it will conflict. There’s just, there’s no question about that. And so this bill does put at risk our ability to continue to operate the seven facilities where we care for a thousand Arkansans and employ more than 3,000 Arkansans. We also know for certain that the mandate will apply to hospitals, to nursing homes, to home health agencies. We think it’s likely it would also apply to other agencies that provide in-home care. So your area agencies on aging, your personal care agencies, all of those are going to be subject to the CMS mandate. And under this bill, they’re going to face a choice of do I comply with federal law and risk incurring literally millions of dollars of damages and court costs as a result of this bill or do I comply with state law and risk my Medicaid and Medicare funding? So I just want to make sure the committee understands that. Be happy to answer any questions.
Ladyman [01:10:55] Any questions from committee? Seeing none, thank you for your comments. To speak for the bill, Militia– Melissa Bosch. Please introduce yourself and who you represent.
Bosch [01:11:12] My name is Melissa Bosch, and I’m from Cabot. And I’m representing– I’m trained as a– I have a master’s in public administration with a minor in human resource management. And I worked on a military base with an NAF. And I had all the laws and they have not changed since I’ve worked. And I had a list of things that I could ask my employees. Now, mind you, I wasn’t in charge of a hospital because I do believe that there are certain differences when you’re actively seeing patients. And that’s not what I’m talking about. I’m talking about all these other businesses that don’t understand why they would have to follow this. And maybe they’re afraid of being, you know, charged with fees or whatever for not doing this mandate. But the only time– now HIPAA applies, like I know that Mr. Ballinger said, you know, there are certain things that aren’t. But as a human resource manager, I could have been sued if I said, Did you ever have T.B. or, you know, that’s really transmittable and we’re around customers and AFES. Did you have TB? Because as you all know, TB is much more transmittable right now than COVID if you go look at the numbers, so. This should still apply under this, which is really concerning to me. So when we talk about medical privacy, I think we need to go back to the beginning and realize we cannot ask these questions anyway. You can’t force someone to say, did you get your flu shot? You can’t ask that in private businesses. You just can’t, unless, of course, you are working for a medical facility and they have to address that themselves. And so I’m speaking for this privacy, kind of upset that we even have to talk about it because our medical privacy is private. And the only time an employer can actually get it is if I have a disability that can affect my safety in the job. It never talks about the safety of others in these laws. So if I have a disability that, let’s say I have, you know, maybe a weaker arm or what is it called when you fall asleep on the job? I would have to disclose that because if I operate machinery, I would pass out while operating a forklift and that could affect me and harm me. And so I think if we look at this, this is only solidifying that people have that right to privacy, and I wish it had the emergency clause because I think people need to feel safe that they’re not going to be fired. But really, I don’t know how deep you guys have gone in research, but we just can’t ask these questions. Like, I know all these private businesses, if they ask if they’ve got the COVID vaccine, I’m sure they could be sued basis on their medical privacy. The only time that I’ve ever heard is in the military. They’re literally emailing each other that, Hey, this person hasn’t been vaccinated and this person has. And even military members are like, Do not put my name out there because nobody else has the right to my medical privacy. Only my commander does. And so we are allowing them to bully us into giving our medical privacy when it is against the law, according to HIPAA, and then if you are sick or have a disability, the American Disability Act. So that’s all I have to say about that. Hopefully, that gives you a little bit better understanding from someone’s point of view that’s actually, you know, knows that you can be sued for asking the wrong questions. Thanks.
Ladyman [01:14:27] Thank you for your comments. Speaking against the bill, Mike Moore. And Randy Zook. Please introduce yourself and who you represent.
Zook [01:14:50] Mike Moore, Arkansas. Randy Zook, Randy Zook, Arkansas State Chamber of Commerce. Long day.
Moore [01:14:57] Thank you, Mr. Chairman. I’m Mike Moore. I’m an attorney with the Friday, Eldridge, and Clark law firm and here with the state chamber today.
Ladyman [01:15:03] You’re recognized to proceed.
Moore [01:15:06] I thank you all for your time, and I listened to Senator Ballinger and he said this, this is a very simple act. And, and I want to disagree with that because I listened to all the questions y’all asked him about, about the act, and it proved that it’s not simple at all. There’s been a lot of discussion about what conflicts there might be with federal law down the road if the Biden administration issues the, the executive orders and the rules that they have said they intend to issue. The problem is, is that the law would put all private employers in violation of the act that y’all already passed as soon as it’s effective. You all passed Act 559, which gives immunity to employers during the pandemic. And that says if they are in good faith following the CDC guidelines. That’s what the statute says that you all passed. The CDC guidelines require private employers to ask vaccination status to decide whether somebody needs to be quarantined, to decide who needs to wear a mask. Those are the questions– that question has to be answered before they can follow those guidelines. And so if they can’t follow those guidelines, they are automatically outside the protection of the immunity that you all granted all these private employers during the pandemic. This law– I heard Senator Ballinger talk about somebody being fired for not getting vaccinated and being able to come in after this law has passed and say that they’ve been discriminated against in violation of this law by not being rehired. And I can’t remember who asked the question, but the question was, if I have a policy that says I do not rehire people who have been terminated for a rule violation or insubordination or however I put it, and I don’t rehire because of that, this law doesn’t help them. To the extent that anybody wants to make you believe this law is going to help them get their job back, it doesn’t. What it does is put employers in violation of the law. And I think about if I had a severely immunocompromised mother at my house that was, that I was caring for and I wanted to hire a caregiver. I can’t ask that caregiver if they’ve been vaccinated. If I ask, if I ask them and they say, I’m not going to tell you and I don’t hire them, they can sue me under the Arkansas Civil Rights Act and get up to $300,000 in punitive damages against me. The bigger problem for my clients that I see is that I have a lot of clients who have immunocompromised employees that they want to allow to work, those employees say, my doctor says I need to be in a situation that is more sterile. I need to be in a situation where I don’t have a bunch of unvaccinated people around me, because as Senator Ballinger said, vaccinated people don’t spread the virus as much as unvaccinated people. And so a doctor says, I need some, I need that employee in a more protected place, outside of unvaccinated people. This law prohibits my client from being able to accommodate that disabled employee and makes them subject to suit by either one. With respect to the the the rules that are coming down, Senator Ballinger says that, that’ll all get worked out. Well, I agree it’ll all get worked out one way or another, but all of that time when it’s not worked out– we know how long those things take– every employer in this state of Arkansas is at risk, either being fined by the federal government or losing their contract with the federal government or paying hundreds of thousands to millions of dollars to employees. It absolutely– this law makes 1977– I’m not going to express opinions on that– it makes that bill useless. Nothing can be done with that bill if this passes.
Zook [01:19:30] Thank you, Mr. Chairman, and thank you members of the committee. It’s been a long day. It’s been a long couple of weeks. I know you’re, you’ve beaten this horse several times from several different angles. But in our opinion, and let me, let me say something plainly. My job is to represent the members of our organization, and those members comprise the bulk of the non-farm payroll employment in Arkansas. There are about 1,200 companies and organizations. One way or another, we touch just about every employee through employment relationships through our members, just about everybody in the state. This is the most damaging bill that has come forward yet in this whole conversation. But I want to emphasize to you again that I’m not speaking for or against vaccine mandates. That’s not the point that we’re trying to make. Our point is that decision should be left up to employers. There’s been discussion of employment at will. We are shredding– make no mistake– we are shredding employment at will in Arkansas if you pass this bill through and it becomes law. That will indeed besmirch our reputation as a place that’s friendly and encouraging and accommodating for business and investment and growth and employment, education, training, all of the things that allow people to become more valuable for their employer. The point that, that’s been made that somehow employers are going to try to run people off because they can hire people cheaper is an insult to to good, legitimate businesses that are screaming right now because they can’t hire enough people. The last thing these companies want to do is be compelled or forced or have no option but to dismiss somebody. They’ll do anything they can to to hold on to good employees because every one of them is looking to hire more employees. Every company nearly that I talked to in Arkansas cannot find enough talent to hire hireable, willing, able people to do the work they have to do. So this will only compound that problem. The challenges and the difficulties you’re putting before employers are nearly impossible with the conflicts that Mike has outlined and, and the liability around the Civil Rights Act and the costs associated with that. So we urge you again once again, speak up or vote for your employers and the good jobs they represent in your districts and to vote against this bill. Happy to take any questions.
Wardlaw [01:22:30] We do have a few of them. Representative Payton, you’re first on the list.
Payton [01:22:35] I was trying to get the chair’s recognition of Representative Miller.
Wardlaw [01:22:46] Rep. Miller, you’re recognized.
Miller [01:22:47] Thank you, Mr. Chair. Mr. Zook, and–
Moore [01:22:53] Mr. Moore.
Miller [01:22:53] Mr. Moore. Sorry, I’m looking at Mr. Zook. He introduced himself as both of y’all. So–
Zook [01:23:00] Wish I were.
Miller [01:23:01] Yeah. We hear from you quite a bit speaking on behalf of businesses. I know we have several business owners sitting here at this table. How many, if you would be so kind to tell me, I think you touched on, what did you say you have–
Zook [01:23:18] Roughly 1,200.
Miller [01:23:18] How many of those 1,200 have you heard from concerning this bill?
Zook [01:23:26] This bill or this package of bills?
Miller [01:23:28] No, no, we’re not talking about a package of bills because we already differentiated in here today how this is different from the other one and so forth and so on. On this bill that you’re speaking on, how many of the 1,200 have you heard from?
Zook [01:23:41] I’ve heard on behalf of the members from a second hand through association heads from probably a third of those, maybe 400, 500, something like that.
Miller [01:24:00] I mean, is that, like, I can say, I heard second hand from the president today, because I’ve heard him on TV. I mean, like actually these folks have come to you, called the chamber, said, please go down there and lobby against this?
Zook [01:24:13] Yes, sir.
Miller [01:24:14] Four hundred of the 1,200.
Zook [01:24:15] On behalf of about 400, yes, of the largest– primary, our primary members and from our executive committee.
Miller [01:24:24] Primary members. Okay, thank you. Thank you. Mr. Chair
Ladyman [01:24:29] Rep. Bentley, you’re recognized. OK. All right, seeing no further questions– oops, sorry. Representative Pilkington.
Pilkington [01:24:38] Thank you, chairman Ladyman. Mr. Zook, how many of your members currently have vaccination requirements? I know of Walmart, Tyson and Mercy. How many other ones?
Zook [01:24:48] Very– it’s a very small number. But again, it’s not the vaccine mandate or not the vaccine mandate. It’s the right of the employer to make that decision. Some of them are coming up on it, as somebody mentioned one of the earlier test– witnesses. This is, this is at hand for federal contractors. And let me amplify that a little bit. Federal contractors are not just maintenance services or, or express services delivering to contractors, or DOD contractors in particular. This is all of the defense complex in Camden, for instance. All those companies and anybody that serves them is directly impacted by that DOD requirement. Those, those are, those are big deals. Every paper company, paper mill has contracts with the federal government. Those will, they will be mandated by the federal government as a holder of a contract to comply. Every small machine shop, every small machine shop that lives onDOD specialty orders is at risk because of this if they choose not to comply. So this is a broad, sweeping mandate from the federal government already in hand, in place. If, if a poultry company furnishes processed chicken or turkeys to any federal agency, they’re going to be required to comply. Every contract with the federal, with or through the federal government is going to be at risk here. This is, this is– you will hear, you will hear over the next couple of weeks if this passes how broad this impact will be. And it will be, it will be serious.
Pilkington [01:26:48] Follow up.
Ladyman [01:26:49] Yes, you’re recognized.
Pilkington [01:26:50] So thank you for that, thank you for that explanation. That was very helpful. Something else I’m curious about, though, is, you know, so last Friday, I guess Tyson let go of employees that weren’t vaccinated. Yet, they had a 92 percent vaccination rate, way over what we consider herd immunity. Why would one of your members be so punitive to their employees right now when we have a labor shortage in Arkansas? Can you kind of address why they decided to do that? Was it just them wanting to show off? Because I mean, 92 percent vaccination rate is fantastic. Kudos to them.
Zook [01:27:22] [01:27:22]I think you’re insulting the really capable management of Tyson Foods. I have no idea what they did. And I don’t want to tell them how to do it or not do it. That’s their business. At least it has been up until now. [
Pilkington [01:27:36] [01:27:36]I don’t mean to insult them. I’ve just got, I’ve got– well, they’ve insulted my constituents who they let go. I mean, I’m sorry, but when I’ve got people in my district who are texting me, calling me, saying that I’ve lost my job because I don’t do that. Sorry, if I caused a little offense to them when I’ve got people who are worried that they’re not going to be able to make their next mortgage payment. So sorry to the people of Tyson for standing up for my constituents. Jesus.
Moore [01:27:59] I think what the people at Tyson are doing is trying to protect the health and welfare of the 92 percent that decided to get the vaccination. And you have somebody, and you have somebody who’s got an underlying illness who doesn’t need to be working around unvaccinated people and being put further at risk.
Ladyman [01:28:18] Rep. Payton, you’re recognized for a question.
Payton [01:28:20] Thank you, Mr. Chair. I know we’re supposed to be keeping our discussion on this bill, but we’ve talked a lot about what laws or regulations the federal government may or may not be handing down in federal contracts. I mean, I’m looking at a list here of more than 20 states that have pending legislation along the same lines. But just real quickly, are you–does Florida have any federal contracts and any military bases? Because Florida has passed a bill, passed a bill that prevents employers from demanding proof of vaccine status. So with all of that commerce and all of those military contracts coming out of Florida, do you think maybe we’d have a chance at some of that?
Zook [01:29:10] Could be.
Payton [01:29:13] There’s two states have already passed it. I haven’t counted, but there’s more than 20 on this list. Folks, we’re worried about what the federal government may do. Why don’t you start considering what the other states are doing and the federal government would do well to the notice that also, wouldn’t you agree?
Zook [01:29:29] I suppose.
Payton [01:29:30] Thank you. Thank you, Mr. Chair.
Ladyman [01:29:36] Representative Gonzales, you’re recognized for a question.
Gonzales [01:29:40] Thank you, Mr. Chair, and I guess I, again, I’m getting off the bill, but I think it was stated at the end of the table that the unvaccinated should get vaccinated to protect the vaccinated. And if the vaccine works, are those people not already protected?
Moore [01:29:55] Obviously we found out that with the Delta variant, some people are more at risk than they were through the Alpha variant. However, as Senator Ballinger said, unvaccinated people spread the disease more than vaccinated people.
Gonzales [01:30:11] I don’t believe I heard Sen. Ballinger say that at all, and he’s over there shaking his head that he never said that. I never heard that come out of his mouth. So I think we probably ought to just in this conversation and agree that it was stated that vaccines don’t work–
Ladyman [01:30:25] Let’s just move on. Representative Bentley, did you have a question?
Bentley [01:30:29] I do, chairman. Thank you. Mr. Zook, can you tell me when the state chamber plans on filing a lawsuit against the Biden administration for telling these businesses what they must do with this vaccine mandate because it’s going to be unprecedented peril on these businesses in Arkansas? When do you plan on filing a lawsuit against the Biden administration on these OSHA rules?
Zook [01:30:45] We won’t be filing a lawsuit against the federal government.
Bentley [01:30:49] So you fine with the federal government what to do, but the state government to do.
Zook [01:30:52] Through organizations we belong to and work with, we’re protesting it, lobbying against it, and likely those organizations will file the suits. We would not be the filing party, though.
Bentley [01:31:04] But they will be. Do you have a time when they might do that? Are they ready to go?
Zook [01:31:06] Soon.
Bentley [01:31:08] Thank you.
Ladyman [01:31:10] Seeing no further questions, thank you for your comments.
Zook [01:31:13] Thank you.
Ladyman [01:31:17] Desti Ellis. Please introduce yourself and who you represent.
Ellis [01:31:27] Thank you for allowing me to speak. And on a side note, thank you for pronouncing my name right. Most nobody ever gets it on the first try.
Ladyman [01:31:34] You’re welcome.
Ellis [01:31:37] I thank you for being here. I will also say I don’t want to be here anymore, and I know you don’t either. I’m going to try to be as brief as I possibly can. I’m sure that you can tell by the quaver in my voice and the red that is probably showing up on my face that this is a very serious issue for me. My family, my husband, is one of those people that Tyson thought would have a good accommodation to put him on unpaid leave and is presently not earning a paycheck for my family. We are directly affected, so for anyone in here who hasn’t heard directly from someone who is. I will tell you that we are. And it is not good. I have heard many times as I have listened to others testify before this group and before the Senate committee as well, that we must protect the rights of businesses to protect their property and their contracts as they see fit. By telling me that my employer or my husband, that his employer has the right to inject us with whatever they see fit to allow us to work and earn a wage means that we become property. It means that slavery, in its essence, is alive and well in this state, and I’m very proud to live in Arkansas. We are very conservative, we are very friendly to business. I have listened to a number of people tell me recently that they moved here specifically for that reason. So I’m asking you, please help us stand up. We have heard the word club thrown out a few times. I heard Senator Ballinger mentioned the little guy pushing up against the big, the big guy. If you’ve ever been on a playground or in a back alley somewhere– I hope you have not– the best way to stand up to, to put an end to the actions of a bully is to push back is to stand up. And right now, we can all acknowledge that our federal government is trying so hard from so many directions to bully us. And all of us are here because we represent people at home who couldn’t be here today to remind us all that the power resides with the people. We the people. If we stand up with these other states, why don’t we lead the country? We in Arkansas, we protect our people. I want to push back on those that say it’s going to hurt their businesses. For the last 18 months, Tyson has had all kinds of protocols set in place that my husband has abided by every single day. And those were enough to keep everyone safe, to allow him to work as an essential worker, to provide for our family until August, when all of a sudden enough was no longer enough. And he is willing to continue doing those things, but was told we’ll accommodate you by sending you home with no paycheck, no recourse. We cannot sue because he is not terminated. If he terminates himself, we can’t sue. He has no benefits. He has nothing. At all. So I am here because I am far louder and far more passionate than he is. And he has allowed me to sit in his place to speak to you people today on his behalf. These companies that are asking us to allow them to continue to treat us like property made huge profits last year. Please do not tell anyone in this room that they will be adversely affected by standing up for a God given right. That is medical privacy that we are trying to protect. I also would like please to address the sunset clause that was brought up earlier, and this will be my last point. If I had been sitting beside Senator Ballinger, I might have asked him to say we don’t put sunset clauses on our civil rights. There is no sunset clause at the bottom of the Bill of Rights, ladies and gentlemen, and there ought not be one on this either.
Ladyman [01:35:52] Would you take a question?
Ellis [01:35:53] Gladly.
Ladyman [01:35:53] Rep. Boyd, you’re recognizd.
Boyd [01:35:56] Thank you, Mr. Chair. I appreciate it. Thank you for being here today. I do appreciate your your testimony.
Ellis [01:36:02] Yes, sir.
Boyd [01:36:03] But I just, I feel like I need to clarify something. Sure. You made a comment about forcing you to inject something in your body. So but my understanding of this bill is we’re just talking about you don’t have to acknowledge COVID 19 status. So is it your testimony, though, that we should never have to disclose flu, tetanus and any other thing that might be an occupational hazard? Or I want to clarify.
Ellis [01:36:31] Sure.
Boyd [01:36:31] Is this just the tip of the iceberg or is this just– you just said that but you really meant we shouldn’t be forced to have COVID vaccine?
Ellis [01:36:39] Personally, I believe it’s nobody’s business whatever medical procedures, be they and vaccinations, medications or surgeries I have ever had or anyone else. I have had many jobs. I have never been asked, did you get your tetanus, did you get your Tdap, did you get your MMR, have you had chickenpox? We’re not allowed to ask those questions. TB, HIV. A whole list of things are far more virulent and far more transmissible than this is, and we’ve, we’ve been looking at it for two years. I’m not a doctor, but I have been listening to doctors who have repeated these things. If we can’t ask that question, then why in the world are we trying to ask about coronavirus? To me, this already is protected, but I feel like this bill is just going to step one step further and say we meant what we said when our medical privacy is private. Does that help? And I hope I wasn’t shouting, I’m sorry.
Ladyman [01:37:43] All right, seeing no further questions, thank you for your comments.
Ellis [01:37:46] Thank you. Blair Allen, to speak for the– against the bill. If you would please introduce yourself and who you represent.
Allen [01:38:02] Thank you. Is that on? I can’t hear it.
Ladyman [01:38:05] Push the button.
Allen [01:38:07] My name is Blair Allen. I’m on the Executive Committee of the Arkansas Hospitality Association and as an occupation, I’m a restaurant and hotel operator. Interestingly, listening to this today and I apologize, I’m a novice at this, so this is my first time to come and do this. But listening to this, I heard a lot of the discussion about mandates and people getting fired, and I didn’t read the proposed law that that’s what it was addressing. I, I come at a different angle. I’m not looking to fire anybody and those of you who are familiar with what hotels and restaurants have been through in the last 18 months, I wouldn’t fire anybody for any of these reasons right now. And if Mr. Ballinger knows of 100 people who’ve been fired, I’d like a list of their names because I need them. So I’m not here wanting to fire anybody for anything. What I’m here to do is address the other thing that Senator Ballinger discussed and that is protecting people. And when I have employees who serve your food and make your bed, I’m concerned about you as a citizen making sure that you’re protected. And that’s where I come from on this angle. I don’t want to ask somebody vaccination status to fire them. I want to ask their vaccination status to know how long that they would need to be quarantined in the event that they become sick so I don’t put them back in your hotel room and your shower and your bed and on your pillow and washing your lettuce before that I know that they’re well. So it is a right about protecting citizens, and that’s what I worry about as a business operator. I’m not here to try to get anybody fired or do anything like that. I want to be able to determine their vaccination status to determine the length of their quarantine. It’s a life safety issue for me, and a lot of the examples here today have been given of companies that are so big that it’s not as relatable to those of us who are just out there making beds and preparing your food. I sympathize with those who’ve been fired, and I don’t pretend to be for that. What I’m really trying to do is is balance the protection of my employees versus my customers. And between the different laws that have been passed, it’s almost become impossible to understand which law to follow and which one’s going to fine me more or opened me up to lawsuit more. And so that’s why I’m against just adding this as more layers that make it more confusing for us and harder for us to protect all of you. That’s all I have to say.
Ladyman [01:40:40] Any questions from committee? Rep. Payton, you’re recognized.
Payton [01:40:45] Thank you, Mr. Chair. So have you done anything to protect your customers from influenza?
Allen [01:40:52] [01:40:52]From influenza?
Payton [01:40:54] [01:40:54]Yes.
Allen [01:40:54] [01:40:54]Well, what I–Yes. What I would say is that I don’t have any of my employees go into your rooms or into the kitchen if, if I know or they know that they have influenza. We don’t, we don’t allow people to work sick.
Payton [01:41:07] [01:41:07]So wouldn’t that be sufficient with COVID 19 if you tested to see if they were sick?
Allen [01:41:15] [01:41:15]Yes, but the the COVID 19 rules require quarantining. And so then I would have to know how long. And how long you quarantine someone is based upon whether or not they’re vaccinated or not.
Payton [01:41:28] I understand that.
Allen [01:41:30] And I wouldn’t want them fixing your food with the flu, either. So. I don’t mandate a flu vaccine, either. I’m not– I mean, this is not, this is not an issue of, of mandating a vaccine.
Payton [01:41:43] And, and so I think the point being there are other measures by which you can protect your customers other than vaccine status.
Allen [01:41:52] And my, my understanding is that y’all passed something else or something else is in the process of being able to test in the place of vaccination. So I would find that sufficient.
Payton [01:42:02] OK, thank you. Thank you, Mr. Chair.
Ladyman [01:42:04] Seeing no further questions, thank you for your comments. OK, to speak for the bill, Blake Thompson, Brock Thompson. Sorry. Please introduce yourself and who you represent.
Thompson [01:42:22] Brock Thompson, I represent myself. I am a small business owner. I’ll make this short. I’m in charge of about 14 people and I’ll tell you this. My people are my business. Everybody becomes a business. When everything got started, you become an employee. So without my employees, there is no business. So what we did at our particular businesses, we allowed choice. We don’t want to talk about it because, you know, as we’ve looked over the last, you know, 10 months, there’s been this evolution of understanding of the vaccination as well as contamination as well as, you know, other things that are still being discussed. So, so for us, we’re at a wait and see and we allow people to have a choice, but we don’t talk about it. I think it’s important for those privacies that we always had for the last, you know, 20 some odd years or further than that to, to continue to have people’s individual freedom and medical freedom and in the privacy to, to do what they need to do. But as Mr. Allen said, you know, we are looking for people to work. And the reason you don’t have a thousand other small business people running 14 to 20 people is because they’re doing those shifts. They’re doing that work because they don’t have enough people. So, you know, in terms of Tyson or any others, if they want to let some other people go, you know, a small business, we’re happy to, we’re happy to take them on. So with that, I’ll leave it. Dr., I mean, Mr. Ballinger did a great job of explaining all my other points. So thank you.
Ladyman [01:43:56] Rep. Davis, you had a question? You’re recognized. Push the button.
Davis [01:44:03] So my question to you is, you’re the employer for your company?
Thompson [01:44:11] Correct.
Davis [01:44:13] With or without this bill– we sit here now without this bill. We may walk out of here with this bill. So with or without this bill, do you anticipate you’ll walk out of here and ask your employees, Have you been vaccinated? Is that a regular occurrence? Do you think in your mind, I’m going to start doing that or–
Thompson [01:44:37] The answer’s no. I think, you know, as my grandfather taught me, there’s a lot of things that are sacred, and one of the things you don’t talk about is, you don’t talk about people’s medical situations. If they’re not able to do the job, then that’s one thing. But if they can perform the job and follow the requirements that you asked for, that allows them to do the job, then I say, bring them on. Nothing’s ever changed that, nor will I move forward. That’s why in my business, I’ve allowed choice. Do I have some people that have gotten vaccinated? Just through conversation, because it seems to be if you get vaccinated, you tell everybody about it, when that’s never been happened before. But these last 18 months, we’ve never seen anything like this happen before. So I will continue to run my business. I don’t ask those questions in interviews. I don’t ask a lot of other questions in interviews and that one will be will not be as well.
Ladyman [01:45:30] Seeing no further questions, thank you for your comments. Alan McVey, if you would, come up to speak against the bill. Please introduce yourself and who you represent.
McVey [01:45:52] Thank you, Mr. Chairman. I’m Alan McVey. I represent the Department of Finance Administration. And our opposition to the bill is with regard to the reference to the American Rescue Plan Act and whether or not the the rescue plan dollars that the state has received could be used for compensation. And we hired– through the support of the Legislature, we hired a consulting firm, CTH and Hagerty, to review both the CARES Act and the American Rescue Plan. Based on the review of our consultant, we can’t find any language within the American Rescue Plan Act that would allow us to use those funds for, for the compensation of the reimbursement that’s been identified. So based on that, that would be our opposition to the bill.
Ladyman [01:46:44] Any questions from committee? Seeing none, thank you for your comments.
McVey [01:46:48] Thank you, Mr. Chairman. Wayne Beech, if you would go to the end of the table. OK. Jodiane Tritt, if you would go to the end of the table to speak against the bill. Please introduce yourself and who you represent.
Tritt [01:47:12] Good afternoon. I’m Jodiane Tritt. I’m the executive vice president of the Arkansas Hospital Association. I want to speak to you a little bit about the penalties that will be assessed upon hospitals if this law does go into effect. Since 2003, there’s been a hospital inpatient quality reporting program in place that’s been mandated by Section 501b of the Medicare Prescription Drug Improvement and Modernization Act. It allowed for penalties to be assessed on hospitals for not entering appropriate data about health care situations, health care, quality improvement, infection rates, all those kinds of things that happen inside a hospital. We are mandated as of October 1 of this year to enter data on COVID vaccine status, for the number of employees who are vaccinated and the number who are not at least once a week, once a month, so weekly on a monthly basis. So in October, we’ll pick a week and do it that week. In November, we’ll pick a week and do it that week. And then we have to report that to what’s called the National Health Care Safety Network, or NHSN database. So if we, if this law goes into effect and we are not allowed to ask our employees if they are vaccinated from COVID– and by the way, we already have to ask them if they’re vaccinated from the flu, many other things are also included in that, in the reporting that we’ve had to do since 2003, then we’ll be assessed penalties of much more than $10 million. I’ll be happy to answer any questions.
Ladyman [01:48:49] Representative Boyd, you’re recognized for a question.
Boyd [01:48:53] Thank you, Mr. Chair. I’ll be quick. We’ve heard lots of testimony about how if we do this, we, the state of Arkansas, the legislative branch passes a law, it’s going to conflict with the federal government and they’re going to hold a bullet to our head and withhold money. I just find it hard to believe this is the first time in Arkansas history that this Legislature has ever passed a law that said one thing that created a conflict where then we couldn’t get funding. So could, I mean, is it really the the first time? And is this really going to happen or is this we’re just fighting because it’s going to make more challenge? Please enlighten me on this.
Tritt [01:49:38] I can’t tell you the number of times that state law conflicts with federal law. I think to Representative Wardlaw’s point earlier, that absolutely is a question for a lot of litigators who like the discord between state law, federal law, federal regs, et cetera. I do know in the hospital world, when state law does conflict with the federal regulation, hospitals do the balance of which costs us more. Right. So in this particular case, we have to ask our employees, Are you vaccinated from the flu? Are you vaccinated from COVID? We don’t have to report the individuals to NHSN. But we do still have to ask our employees so that we have a numerator and a denominator to satisfy that requirement. So I don’t know exactly what to tell you to answer your question about state law and federal law not always acting in accordance with one another other than the courts make those decisions all the time.
Ladyman [01:50:38] Yes, you’re recognized.
Boyd [01:50:42] So, just in that scenario, I mean, would this law, if it were in effect today, prevent you from doing some kind of anonymous survey or some other way to collect that data besides, I’m going to, you know, Dr. Cloud individually and asking. Because a lot of, there are a lot of employees at hospitals, I find it hard to believe that that we go ask every single one individually. Thank you.
Tritt [01:51:06] We do ask everyone individually. And yes, we would be audited by Medicare and Medicaid through the CMS audit process and sometimes also by the Arkansas Department of Health. And if we have been incorrect in our reporting mechanisms, we get in big time trouble. We have Medicaid recovery auditor contracts and other contracts that come in, and they not only take the money that it cost us, sometimes it’s three, four or five times as much in a penalty.
Ladyman [01:51:34] Rep. Wardlaw, you’re recognized for a question.
Wardlaw [01:51:37] So thank you, Mr. Chair. Earlier, I asked Jim Hudson, the attorney for Workforce, and that whole division over there– he’s not just Workforce. But I asked him the question, Would we be liable in the healthcare industry for this? I heard you in your testimony earlier basically say we would. How does that work when the state law is going to prohibit you from doing what your employer, the federal government, says you have to do? Is there a lawsuit then driven to the state law to overturn it? Or where are we at with that? Where would we be?
Tritt [01:52:13] OK, rephrase your question where I can understand. Are you asking the process for, if I ask, if you’re my employee and I work at a hospital and I say, Representative Wardlaw–
Wardlaw [01:52:22] I’m asking you, if I’m Bradley County Hospital, and I comply with the federal law, not state law. And then these penalties come out. Do I have to pay these penalties because I applied to the supreme law? Where, where does that leave me as Bradley County Hospital?
Tritt [01:52:38] It definitely, it definitely leaves you in a position to where you have to ask the federal government for permission to follow the state law. And if they say no you, you should still follow the federal law, then absolutely you get put in court to determine which law controls. The United States Constitution, article si, Section two is the supremacy clause, and most of the time, it says if federal and state law are in direct conflict, the federal law would then govern.
Wardlaw [01:53:04] Thank you.
Ladyman [01:53:07] Representative Dotson, you’re recognized.
Dotson [01:53:11] Thank you, Mr. Chair. Just trying to process what you just said. So in relation to your previous testimony, you had said that this is going to cost– can you remind me what the number you said it was, $10 million?
Tritt [01:53:29] Yes, it’s somewhere between between $10 million and $12 million. So since 2003, there have been other things enacted that also determine the amount of penalties hospitals have to pay for not complying with the appropriate reporting in the hospital inpatient quality reporting program. The thing that changed, OK, for the COVID vaccine to be included in that is the CMS inpatient prospective payment system rule has been enacted effective October 1 of this year, and it added another thing that we have to report to that reporting program. And now the new thing added is whether an employee is vaccinated with COVID or not, or actually the number of employees who are vaccinated against COVID and those who are not.
Dotson [01:54:14] So, so the penalty’s between 10 and 12 million in hospitals across the state?
Tritt [01:54:19] Yes, it’s a, it’s a, it’s a statewide number. Yes, sir.
Dotson [01:54:23] And so, I guess I’m just curious and you may not know the answer to this, whether ARP funds would be eligible for that type of an expenditure or that type of reimbursement for those types of things.
Tritt [01:54:37] I don’t know the answer to that. I will tell you this. There is quite a complex formula that goes into Medicare reimbursement for hospitals who take care of folks who are obviously Medicare eligible over age 65. This particular formula is based off of a market basket. That’s a term of art, and you all don’t want to hear all the details about it. But it’s basically a tiny percentage of a Medicare payment that hospitals get held back, if you will, or penalized for not complying with federal law. As well you all know, the number one stick to get hospitals to do what we’re supposed to do is withhold Medicare and Medicaid money from us.
Dotson [01:55:14] And just for my memory and recollection, can you, can you tell me how much– I know we recently released some ARPA funds to all hospitals in the state to the tune of close to a quarter of a billion dollars. Do you remember about how much that was?
Tritt [01:55:31] $129 million dollars from ARPA funds.
Dotson [01:55:33] 129 million? So maybe I’m confusing that with both hospitals and something else like nursing homes.
Tritt [01:55:41] Probably so, yes.
Dotson [01:55:42] Okay, so 129 million. Thank you.
Ladyman [01:55:46] Representative Pilkington, you’re recognized.
Pilkington [01:55:52] Thank you, Chairman Ladyman. Jodiane, and would it not be a stronger bill in your opinion, if we just added an amendment to exempt healthcare facilities?
Tritt [01:56:00] Absolutely.
Pilkington [01:56:01] Okay.
Ladyman [01:56:03] Can I inject something right here? That’s a really good question because I’ve been sitting here listening, and some you all know I used to be a health and safety person for many, many years in large factories, and I had nurses that worked for me. The nurses could ask people medical questions, and it was very frustrating to me when I would go to do an investigation and it might be serious. It could be a fatality. And I go investigate this accident. The nurse could not tell me certain things because I was not a medical professional, because I didn’t have a certificate. I was just a plain old engineer. And but that nurse could ask anything, but I couldn’t. So, you know, I think the medical community, to Rep. Pilkington’s point here, it’s two– we’re apples and oranges here. We’re talking about businesses, non-medical businesses, I don’t think they can ask this question right now under the HIPAA law. That’s my interpretation. I’m not a lawyer, but I don’t think you can ask that and pass that on to non-medical people. But in the medical field, I understand why you have to ask that question because you’re treating sick people and you don’t want them to catch other diseases. So to me, I don’t think you ask that question now, but that’s just my comment. Where are we at on– Representative Payton, you’re recognized for a question. Representative Gonzalez, you’re recognized.
Gonzales [01:57:36] Thank you, Mr. Chair. Miss Tritt, so I understand now that y’all have to ask vaccination status on certain things. So, what happens if someone refuses to answer that? What if they tell you, no, that they haven’t been vaccinated or if they don’t get vaccinated? Are there options for them to continue working at the hospital? And are you more scared of this or would it be worse if you had a huge shortage of nurses because they all walked out because they didn’t want to get vaccinated? What’s, what’s the worst case here?
Tritt [01:58:09] Oh gosh. Well, the worst case, obviously, is CMS not paying us for taking care of Medicare and Medicaid patients anymore. So we’re always going to do our very best to make sure our patients are as safe as possible, but we also have to comply with all of those Medicare and Medicaid conditions of participation guidelines, rules, regulations and all those other things, many of which were put in as protections for patient safety. The hospital inpatient quality data reporting requirement at the beginning, at the outset was to make sure all hospitals were doing the right things to make sure patients, once they got in the hospital, were safe and protected. So definitely the worst thing would be if we no longer could take care of Medicare and Medicaid patients because our safety was not up to par and not up to code and regulation.
Gonzales [01:58:53] OK, so on the flu vaccine, specifically, if someone hasn’t had it or they refuse to get it or they cannot get it for some reason, is there some safety protocol that they can follow to continue working at the hospital?
Tritt [01:59:05] Absolutely. And one of the things that puts us in direct conflict with the COVID vaccination that makes it substantially different from the flu vaccine is we don’t know what the feds will allow as reasonable accommodations. That’s absolutely the crux of what we’re waiting on from both OSHA standards because hospitals are employers from that perspective, obviously, and also from the Medicare conditions of participation from what employees may or may not be allowed to have as a reasonable accommodations.
Gonzales [01:59:37] Can I have–
Ladyman [01:59:38] One more? Go ahead.
Gonzales [01:59:41] I’d already kind of asked that, but. So what if someone refuses to answer the survey, if they refuse to say if they’ve been vaccinated or not? What happens at that point?
Tritt [01:59:50] That’s a great question, and I imagine that a hospital employee policies are different based on what they have as reasonable accommodations spread out from there. My guess is that would be a violation of the employer employee contract because employees know that they’re going to be asked those kinds of questions and they’re definitely told and given an opportunity to consent and or comply.
Ladyman [02:00:18] Representative Bentley, you’re recognized.
Bentley [02:00:20] Thank you, chairman. Thank you, Miss Tritt, for being here. As we look across the nation, we see hospitals that are shutting down, really hurting when they enforce vaccine mandates, especially in New York. I’m very concerned about Arkansas. So we, are currently facing any staffing shortages and can we see it worse if we enforce these vaccine mandates that are coming down?
Tritt [02:00:39] We definitely have staffing shortages. The $129 million that Representative Dotson alluded to were specifically so that we could retain and recruit more staff to take care of COVID patients and non-COVID patients in the hospital. So absolutely, we’re concerned about staff, especially at the front lines and at the bedside. I will say to a point that was raised earlier today, if a health care worker is vaccinated and has come in contact with a COVID positive person, that health care worker can still, with no symptoms, can still work without having to quarantine within a hospital, which has been very helpful for us and likely one of the reasons that some hospitals jumped the gun and got out in front of them, at least telling their employees that eventually there would be a mandate of some kind to get the COVID vaccination because they did the math within their own hospital to determine how many folks could stay at work if they were vaccinated.
Bentley [02:01:34] Just one fast follow-up, Mr. Chair.
Ladyman [02:01:35] Yes, you’re recognized.
Bentley [02:01:37] If we’re facing serious shortages and we’ve given you money to overcome it, so, so why are we going to fire nurses and health care workers at this point? Why why do we do that and put our– because I’m just– I have a neighbor that really went through cancer and the horror stories I heard because of the lack of care, which hurts me as a nurse right here. But they’re really short of staff now. They’re hurting now before this even goes in effect. So why are we going to fire more nurses?
Tritt [02:01:57] To my knowledge, hospital mandates are in place yet. They haven’t taken place yet. They’ve been set that, you know, a date certain down the road you have until x date to be vaccinated. But I will fully and freely admit I have not read every single policy and I know many hospitals, in fact, in Arkansas are waiting to see what the federal mandates are going to look like before implementing those policies.
Ladyman [02:02:26] Seeing no more questions, thank– oops, sorry, Representative Boyd, you’re recognized.
Boyd [02:02:31] Thank you, Mr. Chair. I’ll be very quick. So operationally speaking, so I’m assuming hospitals somewhere provide COVID vaccine. And in order to do that, you would have to do an informed consent. And one of the questions on there would obviously be have you had COVID vaccine before? So where does employee relationship stop and patient relationship begin in that scenario? Or you just, if you’re an employer, you’re never going to be able to ask that question, could you help me with that?
Tritt [02:02:59] Sure. Not all hospital health care workers get their vaccinations from the hospital. Many of them get them from your pharmacies and from other places. So we would ask the question, Are you vaccinated or not? And if you’re not, we would ask the question if they wanted to be, if in fact we had a vaccine and wanted to make that available. Until the mandate comes down, we’ll have plenty of places that don’t require the COVID vaccine until the mandate comes down and makes us conform.
Ladyman [02:03:29] Seeing no further questions, thank you for your comments. Dustin– I can’t read that last name. Keiter– Dustin Keither, please go to the end of the table. Please introduce yourself and who you represent.
Keiter [02:03:54] My name is Dustin Keitar. I actually just represent myself. I’ve been a nurse in Arkansas since I graduated in 2003. I’ve experienced stuff like this before, where we’ve had flu. We have managed these types of viruses before. We’ve never basically told people that you either get the vaccination or you lose your job. That’s never happened before. As a healthcare provider, I can understand people wanting to know if I’ve had a vaccine, something like smallpox or something that was very lethal. But as far as COVID, the vaccine doesn’t keep me from spreading. It doesn’t keep me from getting it. I find it very heartwarming that, you know, these businessmen are so concerned with my safety. That’s not their concern. That’s my concern. The vaccine’s been available for what, a year? If you want it, go get it. If you’re that concerned about the virus, go get it. But it doesn’t prevent you from getting it. It doesn’t prevent you from spreading it. so there’s no reason for me to take it. I’ve already had COVID. I’ve recovered. My immunity is infinitely stronger and more durable than what the vaccine does for me. It will not enhance in any way my immunity. The benefit is just not there. And that goes for almost every one of these health care providers that don’t want it. They have already had it. Now, I don’t mind if my employer asked me if I’ve had it. I support this bill because there are other Arkansans that are not taking care of patients. There’s no reason for them to be asked. I understand for me. But I’m standing up for other Arkansans. I don’t think I should have to take the vaccine at all. As far as being able to spread it, I have not seen any studies that show that people that are, have convalescent immunity are any more or less likely to spread it. But as far as these folks being worried about my safety, it’s none of your concern. I’m a grown man. I take care of myself. I’ve lived for 45 years without you intervening in my life. OK. August 2nd, 1776. Men, just like you stood at a table just like this and they signed a document that gave us this freedom. OK? And they basically signed away their own freedoms understanding what it would cost. How can we not do that today? What is it going to cost you to sign this document? Nothing. Not a thing. That’s all I’m going to say.
Ladyman [02:07:12] Any questions from committee? Seeing none, thank you for your comments. Jay Cheshire, please go to the end of the table. Introduce yourself and who you represent.
Cheshire [02:07:32] Mr. Chairman and members of the committee, thank you so much. I’m Jay Cheshire with the Little Rock Regional Chamber of Commerce. I, actually, and thank you for your service because I can’t even imagine what you guys and gals go through. So first of all, thank you. I’m here to talk about the business issues if somebody wants to do that, but I want to bring to your attention another issue that I think you ought to think about. Because in 2019, the General Assembly had House Bill 1786, which is now Act 676. And that that act requires public and private schools to report certain information regarding the number and percentage of students who have exemptions from or have not provided proof of required vaccinations. So that’s something that that the General Assembly then actually enacted. And for those of you that have had or do have kids in public school, when that information is actually input, its input into what’s called Triand. And if you are a public school student and a public school, you’re required to capture that information. But you heard in that act that there were, there were exemptions. And so if you go to the Department of Health and you look at what, what can can a parent do if they choose not to have that information, what can they do and how do they do it. And in that question and answer on the Arkansas Department of Health web page, it says, Arkansas law requires all students attending Arkansas schools in licensed child care facilities to be vaccinated against certain diseases and unless– excuse me, I should– forget the and– unless an official exemption form is filed. So we’ve talked about exemptions today. It goes on further to talk about an application requesting an exemption must be submitted for each child and for each child care or school the student attends. An application with a notarized signature of the parent or guardian must be submitted each school year to the Department of Health. Outdated or alternate forms are not allowed. So we talk about the process if you’re a child in our public school system and your parent, their parent does not want that information released, that’s how you go about it. But here’s the key to what’s happening today with this bill in the business community. If a child is exposed to a vaccine preventable disease for which an exemption is chosen, the child should expect to be excluded from childcare or school for 21 days or longer, as determined by the Arkansas Department of Health. This is for the protection of the exempted child and the protection of others. It talks about a physician’s statement. And so we have in our public schools right now that this former body in 2019 approved, a way to handle this from a public school standpoint. And I think what you’ve heard today is everyone has their rights, everyone has their choices. But in the case of someone that is infected or someone who isn’t vaccinated against a preventable disease, for that business to be able to keep the rest of the employees as safe as possible, it’s just a matter of public health that that business have the same opportunity that your school superintendent, that your principal has with every child in their building. So we can talk about vaccines, not vaccines. We can talk about choices, not choices. It’s just a matter of information for public health. A business environment is part of the public health. A healthy business is made up of healthy people, and that’s how we operate from a school perspective. It’s how we also operate from a business perspective. So would ask your consideration not to approve this bill, because you’re taking away the business owner or manager’s opportunity to do the same thing that you’ve given to your school superintendent. Be happy to answer any questions.
Ladyman [02:11:43] Any questions from committee? Representative Gonzalez, you’re recognized.
Gonzales [02:11:47] Thank you, Mr. Chair. Do you know how long those vaccines had been around and been studied before the Legislature got involved?
Cheshire [02:11:52] Sir, I am not a medical professional, nor did I say the Holiday Inn Express last night.
Gonzales [02:11:56] OK, thank you. And I appreciate you bringing that to our attention because that’s something that we may need to address in the future and include schoolchildren into this as well, possibly.
Ladyman [02:12:06] Any other questions from committee? Seeing none, thank you for your comments. All right. We have no one else signed up to speak for or against the bill. Senator, are you ready to close for your bill? You’re recognized to close.
Ballinger [02:12:22] Yes, and I’ll keep this short. You guys have spent enough time. In short, I think that this, this process, we’ve seen it kind of all, all the way through it. You know, what, what you see in testimony, you see the people who dwell in Little Rock– a lot, a lot of them are my friends who have come in to speak against the bill. And then you see the people who are like our people, the people in our district, regular folks who are coming in and speaking for this bill. And there’s a, a legitimate reason for that. I mean, by passing this, we are empowering the little guy and the very nature of empowering the little guy is it weakens the hand of the bigger guy. And I, I wish we weren’t in this situation. I wish we didn’t have to deal with this at all. But the fact is, we have no choice. A lot of those businesses that were well represented here have chosen to move forward with this. They’ve chosen to follow the Biden administration’s direction rather than than pushing back on it. And it’s kind of our job to do that. I want to, I want to make sure I specifically address– so this bill got filed when we first came down here. But the same bill, same language has been filed and on the books since August 5. So for a little over two months, it’s been out there. First time I’ve heard about this, this rule requiring that disclosure was, was just now. What I think we can probably do to make this comply with that, is, actually, Rep. Boyd, you hit it, nail on the head. If the reporting is required, the number of employees– and, and I think this gets to something that’s a little bit confusing and I can see it by testimony. There’s nothing in this bill that, that prohibits the disclosure. You’re allowed to disclose your vaccine status or even asking for your vaccine status. You just can’t require it and you can’t retaliate against a person if they, if they won’t disclose it. It’s just protecting that, that privacy right? So if it’s a matter of if they can provide it anonymously, then you could take that anonymously and you could prove that you’re not retaliating against them at all because of the fact that you’re taking that information and providing it. Now, I don’t know if that’s going to work exactly within that rule. And honestly, I’m not, I don’t want to say I’m not worried about it, because I am. Obviously, I don’t want to cause any more problems for our hospitals at all. But one reason why it doesn’t scare me right now is, as much as I’d love for an emergency clause, there’s not one. We have until January to make sure we work it out. We all know that in a couple of weeks we’re going to be coming back down here. My guess is now that this bill passes, we’ll probably have a lot of people who are really interested to make sure that this bill works, a lot more of them than over the last two months when asked. So I don’t know if you all are going to pass it, but if it does, my guess is we will have some way to try to to come in and make sure it doesn’t, doesn’t hurt too much. But, but honestly, I’m not for trying to comply with federal rules altogether. The AG’s office said that they can defend this and so they’ll step up and they’ll defend our law against a federal rule. And I hope we win if it’s an overreaching federal rule. If it’s something we can work inside this, that’s great. If it’s something that violates the rights of our constituents and makes it where we’re inconsistent with, with, then, by golly, let’s fight a little bit. And let’s get– my son just teased me. Every time I get excited, I squeal. Eek. You know, it’s kind of embarrassing. And so now I notice it every time. So the point is that, look, I don’t want to make life hard on my, my hospital. But I also am not going to exempt those healthcare workers who’ve been busting their butt for a year and a half now. I’m not going to do it. There’s my squeak. I mean, I’m just not going to do it. I mean, like how are we going to come in and say, You know what? We’ll protect you, big business– well, or employees of big business. It’s not about big business, clearly. But we’ll protect you, employee of big business. We will protect you, every other employee. But sorry, you know you nurse that’s been working in the COVID unit for 18 months, and because you’ve done some research and you don’t feel like it’s right for you, we’re going to exempt you out of it and you can get fired. Now just we can’t do that. We’ve got to provide this protection for everybody. Let’s make it work within the– and, you know, like, Jodiane is great. She’s, she’s always solid, and let’s sit down and we’ll see if we can make it work, and if we have to change the code to make it work? We’ll come back in a couple of weeks. And we do it. I don’t think that’s the case. I’m willing to do whatever we can to, to protect them, and we’ll try to make it work. But, you know, this is the tool that we have right now sitting in front of us. So I appreciate a good vote.
Ladyman [02:17:21] All right, what’s the will of the committee? Rep. Gonzales, you’re recognized. I have a motion do pass. Any discussion on the motion? Representative Bentley, you’re recognized.
Bentley [02:17:32] Just real briefly, I want to say that this is not the end, what’s coming down from this administration. This is just the beginning. And we’ve got to start to push back and this is where it starts, the state legislature. So with that, I would just encourage a do pass. Thank you.
Ladyman [02:17:47] Any further discussion? Representative Pilkington.
Pilkington [02:17:50] Maybe someone else on the committee can help enlighten me on this. But so what I was thinking, though, if we had a health care exception, if this bill was brought down or we voted down today and it was brought back with an amendment to add a health care exemption, because obviously the voters of this bill can make sure that we, they do not adjourn in the Senate. We do that, though, we’ve already got Josh Bryant’s bill in place. So even if they don’t want to get the vaccine, you know, they still have this other alternative about testing, and if they’ve had it, you know, immunity that way. So I’m curious if we, if we can wait until that exemption gets put in, we actually get a stronger bill. You know, I know we feel like we’re up against this deadline, but the deadline is the deadline we set. I mean, we choose when we go home right now. And so I’d rather take the time and be precise with what we send out of here. And so hopefully someone can maybe tell me I’m wrong in that assumption, maybe they can tell me I’m right. But I just I wanted to put that out to the committee to, to think about.
Ladyman [02:18:51] Well, Representative Pilkington, I mean, that’s a good point you’re talking about. And as I said earlier, I believe businesses, you know, already have this right. I mean, I think it’s already in place. And I said that medical communities, they can, they can do this because they need to because they’re , they have patients and you don’t want to, you know, have a sick person and give them another disease, and I understand that. But in this case, I believe the medical profession needs this bill needs to be passed for them because it’s an unusual– I may confuse you talking in circles here. But I think businesses already can do what this bill does ask for. I think medical people need to have this. My opinion. Representative Payton.
Payton [02:19:41] Thank you, Mr. Chair. And members, I’m in no way advocating for amendment of this proposal, but it has no emergency clause. We pass it today. The clock starts ticking on the 90 days. There’s plenty of opportunity within those 90 days to come back and pass an amendment, modify, change, repeal this thing before it becomes effective. But we need the clock ticking. We need to get this passed now and start the clock ticking. And then if you want to propose an exemption to it, we can do that. I’m sure knowing who the opposition to this bill has been that the power’s within their hand to bring us back in here to address that if they wish to. Thank you.
Ladyman [02:20:36] Rep. Wing, you’re recognized.
Wing [02:20:38] I just wanted to pretty much second what Representative Payton said. This gives us an opportunity to negotiate from a position of strength. We have something on the clock. People are wanting to come together now to discuss. And this also, with all of the doomsday scenarios that have been presented to this point, what will likely happen if we pass something that goes against guidelines that may come down, that we expect will come down, but that we do not have here, it will go and it will be discussed in the courts and there will be injunctions and there will be stays and those will be discussed. But we will have the opportunity to place our position in the discussion. And our position will be of strength. And also, in the meantime, for people whose employment is threatened, it gives them some hope that there is a clock that is ticking on 90 days and that, that is a good thing. And it also gives credence to the state’s position when our attorney general eventually challenges this.
Ladyman [02:21:43] Any other discussion? Representative Pilkington, you’re recognized.
Pilkington [02:21:46] So we talk about this clock ticking, though, but my concern is that, like I brought up earlier, was that now these businesses, now they have 90 days to implement a vaccine mandate before this law goes into effect. So we’re actually telling business that if you want to be in compliance with a potential federal law, you better go do it now because in 90 days, the jig is up and you’re going to have to– you can’t do it anymore or you’re going to be fined by the state. So if anything, I’m worried that this might put a mass– we might see a mass vaccine mandates from some of our big employers. So I mean, are we are setting off two bombs at once, I guess, is what I’m saying.
Ladyman [02:22:26] Representative Miller, you’re recognized?
Miller [02:22:29] Thank you, Mr. Chairman. I just want to say, I don’t like this. I don’t like being in this position. I mean, honestly, this sucks. And for those of y’all, you, businesses, the few of you because there’s not many. I heard Mr. Zook earlier say he had heard from, if he was correct, and all the businesses that he heard from in the state chamber, he heard from a third of them. So that’s 66, 67 percent of other businesses in the state chamber he hadn’t heard from, that didn’t care enough to contact the state chamber. So with that being said, with that being the case, I’m a business owner. Rep. Payton’s a business owner. We’ve got several business owners on this committee. I don’t want the government telling me what to do, what questions I can ask, what questions I can’t ask. We got enough of that already. But at the end of the day, the 20 of us on this committee, it doesn’t matter what we do in our regular life. We answer to 30,000 people in our districts. And in my district, I’ve got folks who are facing, and some who already have lost their jobs and those are facing that coming up. And while I as a conservative, I’ve wrestled with this for days. I’ve had a long conversation with Represen– or Bob, Senator Ballinger about this very thing. I hate being a part of government interfering in businesses. I don’t like it. But dadgumit, I wish our businesses wouldn’t do what they’re doing. It’s not a way to treat people, and this is the one thing, I guess, I don’t know. Rep. Wing hit on it a minute ago, we’re, we’re not going to be the deciding factor here. These things will be handled in court. But we’ve got to do what we’re doing here for there to be something to decide in court. I don’t like it, but I’ll be supporting it.
Ladyman [02:25:14] Representative Bentley, you’re recognized.
Bentley [02:25:16] Thank you, chairman. In response to Representative Pilkington, I want to say that I’m sure your district’s like mine. People are begging for employees. They’re hard to come by. Everywhere I go, I see a hiring sign and massive sign up bonuses. I don’t think we have a massive exodus of people firing folks when they can’t, can’t replace the ones they’re going to fire. So that was where I was. Thank you.
Ladyman [02:25:36] Any other discussion? Seeing none, the motion on the floor is do pass. All in favor signify by saying aye. Those opposed nay. The ayes have it. Congratulations, Senator, your bill– OK, roll call. Call the roll.
Clerk [02:26:05] Rep. Wardlaw, no. Representative Eubanks, no. Representative Magie. no. Representative Dotson, yes. Representative Miller, yes. Representative Payton, yes. Representative Bentley, yes. Representative Gray, no. Representative Gonzalez, yes. Representative Boyd, yes. Representative Alan, no. Representative Coleman, no. Representative Pilkington, yes. Representative Wing, yes. Representative Penzo, yes. Representative Perry. Representative Perry. Representative Davis, no. Representative Cloud, yes. Vice Chair Ferguson. Vice Chair Ferguson. Chair Ladyman, yes.
Ladyman [02:27:56] That makes 11. Congratulations, Senator, your bill is passed.
Ballinger [02:27:57] Thank you, Mr. Chair, thank you, committee.
Ladyman [02:28:01] The next bill on the agenda, the sponsor has, has asked to skip over that. So seeing no further business, we are adjourned.