Special session offers hint of what awaits Kansas lawmakers in 2022 legislative session

Election year politics, COVID-19 frustrations to drive flurry of reform bills

By: and - November 24, 2021 12:47 pm

Anti-vaxxers observing House debate Monday from the chamber gallery raise their hands in silent support after being admonished for previous outbursts. (Sherman Smith/Kansas Reflector)

TOPEKA — Republican Sen. Rob Olson added his name to the long list of legislators who exited the one-day special session with less than they wanted.

The House and Senate approved and Gov. Laura Kelly signed a bill supportive of Kansans who objected to COVID-19 vaccination and presented their employers with religious, medical or philosophical objections to a mandate. If subsequently fired for refusing the vaccine, the new state law created a mechanism for anti-vaxxers to qualify for unemployment benefits. It also opened the door to a state-run process of financially punishing companies that didn’t accept vaccination exemption applications from their workers.

“I can’t force someone else to go in and take that vaccination for a job,” argued Olson, who said he refused the vaccine. “If it was me, I would quit that job.”

Olson proposed during the Senate’s debate a simple amendment to House Bill 2001, which would have shielded employers from paying more into the state’s unemployment trust fund if there was a spike in jobless claims. It wasn’t part of the final bill because House and Senate GOP leaders blocked a cluster of COVID-19 reform ideas crafted by lawmakers. Olson and the other legislators must wait until start of the 2022 legislative session in January to make their case.

Expect the Legislature to grapple with an assortment of coronavirus bills, including one taking away authority of private businesses to mandate employees get a COVID-19 vaccination. Another proposal would add COVID-19 vaccination status to the list of prohibited forms of employment discrimination along with race, religion, color, sex, disability, ancestry, national origin and age.

Waiting in the wings is a measure prohibiting any form of “vaccination passport” indicating who did or didn’t get a shot. Another would make it illegal to “profile,” or easily identify, people who secured exemptions to vaccination. There could be a bill designed to block businesses from sanctioning workers who take time off the job to get a COVID-19 vaccination.

 

Rep. Stephen Owens, a Hesston Republican, listens Nov. 22, 2021, as Senate and House members negotiate a compromise on the special session bill. (Sherman Smith/Kansas Reflector)

COVID-19, and more

Sen. Tom Holland, a Democrat from Baldwin City, said the COVID-19 bill adopted during the special session didn’t provide clarity for employers faced with a federal vaccination mandate through President Joe Biden’s executive order and the state law aimed at countering the president’s directive. Depending on action taken, employers in Kansas could be stripped of federal funding or fined through the attorney general’s office.

Adding to the turmoil, Holland said, was the reality of Kansas being a right-to-work state. In other words, Kansas is an at-will employment state, which enables an employer to fire an employee for any reason or for no reason at all.

“We’re giving Kansas citizens the false impression that they are getting additional privileges and rights which violate that right-to-work tenant,” Holland said. “This bill did not do our Kansas employers any favors. It creates confusion.”

He vowed to introduce an unemployment reform bill applying specifically to people who refused mandates to get a COVID-19 shot.

The 2022 session, fueled by election-year politics and reinforced by public frustration with the pandemic, could be a blockbuster. There will be pressure to adopt a medical marijuana law, expand eligibility for Medicaid and implement sports wagering. Don’t forget critical race theory, funding of mental health services, election reform and repeal of the sales tax on groceries. And, the Legislature is preparing to redraw Kansas House, Kansas Senate and U.S. House boundaries.

There could be an intriguing debate on the legal theory of “nullification,” which some believe would enable the invalidation of any federal law a state viewed as a violation of the U.S. Constitution.

“I think that as we look at the next session … there will be conversations about going further, and what does that look like, and how can we further protect people? How can we contemplate banning mandates?” said Rep. Stephen Owens, a Hesston Republican who served on the special committee on government overreach, which produced the special session bill.

“Whether those prevail is to be determined,” Owens said.

 

Kansas Attorney General Derek Schmidt speaks via video link Oct. 29, 2021, to the government overreach committee, where he outlined plans to challenge a vaccine mandate for federal contractors. (Kansas Legislature YouTube screen capture/Kansas Reflector)

Cease-and-desist orders

Attorney General Derek Schmidt, a Republican candidate for governor, said the law that took effect Tuesday meant public and private employers couldn’t inquire about the sincerity of an employee’s religious belief when that worker sought a waiver to a vaccination requirement.

Schmidt said he would begin contacting public employers in Kansas potentially in violation of the law. In a statement, he didn’t identify the suspected offending employers. He said some had required workers to complete detailed questionnaires to gather information or documentation about an employee’s faith history.

That form of discretionary evaluation was made illegal by the bill adopted by the Legislature and signed by Kelly, the attorney general said.

“In Kansas, an employee’s religious faith may not be put on trial in order to obtain the waiver to which the employee is entitled by law,” Schmidt said. “It is particularly distressing when a public-sector employer — an agent of the government — sits in judgment of the sincerity of an employee’s religious faith.”

The new law included potential fines of up to $50,000 for each infraction by a company found to have acted improperly when handling exemption requests. Under the new system, a worker alleging he or she was fired for refusing a vaccination mandate could file a complaint with the Kansas Department of Labor. It would be up to the attorney general’s office to secure in state district court a civil judgment against the company.

 

Sen. Mike Thompson, during a Nov. 9, 2021, meeting of the government overreach committee, falsely claims CDC data shows COVID-19 vaccines have killed more than 7,000 people. (Sherman Smith/Kansas Reflector)

‘Wagging the dog’

Rep. Randy Garber, a Sabetha Republican who expressed concern for what COVID-19 vaccines would do to people “in the long run,” questioned where government rights stopped and human rights began. He touted use of ivermectin and hydroxychloroquine — both widely discredited for use against COVID-19 — as remedies for the deadly virus.

Garber wanted lawmakers to take a stronger position on government mandates tied to pandemic, and twice made motions to stop the special session bill from advancing to a vote in the House.

“Folks, if we don’t start going against the federal government, the tail is going to keep wagging the dog, so to speak,” Garber said. “They continue to step outside their boundaries, more and more, every year. And I will contend it’s not just when one party is in power. We’ve got to put a line in the sand and say, ‘This is enough. We will not bow down.’ ”

Sen. Mike Thompson, a Republican from Johnson County, said the vaccination mandate issued by Biden trampled on no less than six constitutional amendments. He said the special session was tip of the iceberg in terms of guaranteeing bodily autonomy in health care decisions. He framed the issue in context of COVID-19 and not the Kansas Supreme Court’s declaration women in Kansas had a constitutional right to abortion by virtue of bodily autonomy.

“If we cannot stop this intrusion into our most personal decisions about our health, where does it end?” Thompson said. “Is this bill the perfect remedy? No. But this is a victory for liberty and the patriots standing tall across Kansas, whose voices do matter.”

 

House Minority Leader Tom Sawyer cautions lawmakers during debate Nov. 22, 2021, about trying to overrule the federal government. (Sherman Smith/Kansas Reflector)

Risk of unintended consequences

During the special session Monday, House and Senate Democrats weren’t keen to work on modifying a bill many of them loathed and voted against. Some were apprehensive about extending debate due to potential of other objectionable bills surfacing as the hours and days ticked by.

House Minority Leader Tom Sawyer, a Wichita Democrat, said he understood the frustration with federal mandates associated with the pandemic. He said he was upset with the possibility of people losing jobs, but was convinced state legislators couldn’t overrule federal mandates.

“Whatever we do here today does not change the fact that federal mandate is still in place,” Sawyer said. “That’s been adjudicated by the courts. The courts will decide that issue. We need to be very careful.”

Sawyer said he was wary of legislators driven to “hurry up and do something, and then there’s lots of unintended consequences later.”

“All we’re doing is adding some additional regulations and mandates on our businesses,” Sawyer said. “We’re trying to solve a problem we can’t solve.”

Senate Minority Leader Dinah Sykes, the Democrat from Lenexa, said Kansans were justifiably eager to put the coronavirus behind them. She said people would be justified to seek worker rights affirmed by state government. House Bill 2001, she said, delivered little more than a false sense of security.

“It does not guarantee that you will have a job regardless of your personal health choices or religious beliefs. Instead, it provides a patina of support while leaving Kansas businesses in an impossible position,” Sykes said.

Democratic Sen. David Haley, of Kansas City, Kan., said the special session affirmed some government servants weren’t willing to share the burden of defeating a virus that factored into the death of 1,060 in Sedgwick County, 960 in Johnson County, 473 in Shawnee County and 387 in Wyandotte County along with more than 100 in each of eight other counties in Kansas.

Organized opposition to social distancing, masking and vaccination pointed to a refusal of people to fight the plague.

“I hope, honestly,” Haley said,  “for Kansas’ sake, the country’s sake, for the world, that we find some way to curb this scourge.”

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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Sherman Smith
Sherman Smith

Sherman Smith is the Kansas Press Association’s journalist of the year. He has written award-winning news stories about the instability of the Kansas foster care system, misconduct by government officials, sexual abuse, technology, education, and the Legislature. He previously spent 16 years at the Topeka Capital-Journal. A lifelong Kansan, he graduated from Emporia State University in 2004 as a Shepherd Scholar with a degree in English.

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