Despite the CDC adding the COVID-19 vaccine to the list of recommended vaccines for public school attendance, Arizona’s Republican lawmakers said that the state won’t be mandating it.
That’s because the state enacted several bills earlier this year precluding such mandates: HB2498, which prohibits any government entities in the state from mandating the COVID vaccine (exempting health care institutions), and HB2086, which further prohibits mandates for the COVID vaccine as well as the human papillomavirus in order to attend school.
The CDC announced last Thursday that it would add the COVID-19 vaccine to the list of childhood and adult immunization schedules next year.
The State Senate Majority issued a statement on Monday asserting that HB2086 protected parental rights against an “out of touch” federal government and its agencies. Senate President Karen Fann (R-Prescott) said that Republican leadership enabled these protections, implying that a state legislature flip would result in a nanny state.
“Injecting something into our bodies is a very personal choice and is one that families should have complete control over,” said Fann. “Senate Republicans believe parents ultimately have the right to make medical decisions for their child, and we will not take away that freedom.”
ADHS and Democratic legislators opposed both bills. During committee discussion of HB2086, State Representative Alma Hernandez (D-Tucson) claimed that fears of COVID-19 vaccine injuries were political. Hernandez said that it would be right to reject a prohibition of a vaccine mandate.
Parents have the ability to seek out medical, religious, and personal exemptions for mandatory vaccines. During committee discussion of HB2086, State Representative Beverly Pingerelli (R-Peoria) shared that constituents described the exemption process as “extremely difficult” and “time consuming.” Former ADHS director Will Humble rejected that characterization in response, but admitted that he made the exemption process more difficult than it had been in the past.
Unlike the state legislature’s slim majority, Arizona’s agencies appear to be falling in line with federal agencies. Carla Berg, Arizona Department of Health Services (ADHS) deputy director, published a memo earlier this month encouraging parents to vaccinate children five and up.
ADHS often aligns itself with CDC and FDA messaging on public health issues. Earlier this summer, ADHS memos about monkeypox echoed similar, controversial memos issued by the federal government, such as a general avoidance on the specifics of the disease’s spread and its predominance among sexually active gay men.
The Attorney General’s Office issued a legal opinion sought by Arizona State Rep. Kelly Townsend regarding COVID-19 vaccine mandates for employees, patrons of businesses, and airline passengers under existing state and federal laws. The 40-page Opinion finds that due to the fact that government and private businesses have varying legal requirements, there is no one-size-fits-all answer.
Attorney General Mark Brnovich emphasized what he says is the “importance of relying on the constitution during a crisis when personal liberties are most at risk. While public health measures may be pursued during emergencies, they cannot trample constitutionally guaranteed liberties. Arizonans should be free, without coercion, to make medical decisions regarding vaccination that they feel are best for themselves and their families. Recent actions by government and private employers mandating Emergency Use Authorization (EUA) vaccinations demonstrate that a proper balance may have yet to be achieved by policymakers.”
“We must hold the Constitution close in times of crisis because that’s when our rights are most at risk,” said Attorney General Mark Brnovich. “In all medical and health decisions, Americans have the right to try and the right not to try; we cannot have one without the other.”
The Opinion provides a summary of current protections for employees and others from vaccination mandates. An Attorney General Opinion must explain the law as it currently exists, and not how the Attorney General or others might desire it to be.
Only a member of the legislature, a public officer of the State, or a county attorney can submit an opinion request to the AGO on legal questions pertaining to their office. The AGO cannot issue opinions for private citizens, nor offer legal advice to private citizens.
The Opinion answered the following three questions:
Whether an employer can require a COVID-19 vaccine as a condition of employment?
Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Whether, under a contract of carriage, a domestic airline can require proof of vaccination as a prerequisite for flying?
As explained below, Attorney General Brnovich determined that, under Arizona law, the government cannot mandate COVID-19 vaccines for public employees. This includes schools, public universities, community colleges, and state and local government. Private businesses can require COVID-19 vaccines for employees but must allow for reasonable accommodations. Per federal law, private entities that carry out an EUA activity like administering COVID-19 vaccines must inform those to whom they are administering the vaccines (which may include employees) that they have an option to decline.
1. Whether an employer can require a COVID-19 vaccine as a condition of employment?
Schools, public universities, community colleges, and state and local governments are statutorily prohibited from requiring employees to obtain COVID-19 vaccinations. While some of these statutory prohibitions will take effect on September 29, 2021, existing Arizona law (A.R.S. §§ 36-114, -184), prohibits state and county governments from imposing vaccine mandates.
Under federal and state law, private businesses can mandate vaccinations for employees but must provide reasonable accommodations for employees who cannot obtain the COVID-19 vaccine due to a disability or a sincerely held religious belief.
2. Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Under federal and state law, private businesses that mandate vaccination for patrons must provide reasonable accommodations to patrons who cannot obtain the COVID-19 vaccine due to disability, and they must not discriminate against customers who cannot obtain such a vaccine due to a sincerely held religious belief.
Under Arizona law, effective September 29, 2021, certain educational institutions will be prohibited from requiring proof of COVID-19 vaccination from students. Currently, public, private, and parochial schools are limited in conditioning student attendance on documentation of vaccines when parents have a personal objection or if a vaccine would be detrimental to a student’s health.
3. Whether, under a contract of carriage, a domestic airline carrier can require proof of vaccination as a prerequisite for flying?
Domestic airlines in the United States are primarily governed by federal law. Currently, there is no federal law that allows a domestic airline to require proof of a COVID-19 vaccine or refuse transportation of a passenger out of fear he/she might have a communicable disease. Under federal regulation, an airline may not refuse a customer based on a communicable disease unless the customer (1) actually has a communicable disease (2) that is a direct threat to other passengers, and (3) cannot obtain a medical certificate setting forth preventative measures. It will be difficult for an airline to establish these requirements with respect to COVID-19 when airline service has continued throughout the pandemic with masking and ventilation as the primary preventative measures.