Jul 12, 2021 - Health

Republicans push to ban "discrimination" against unvaccinated people

Illustration of a syringe under glass.

Illustration: Aïda Amer/Axios

State Republican lawmakers around the country are pushing bills — at least one of which has become law — that would give unvaccinated people the same protections as those surrounding race, gender and religion.

Why it matters: These bills would tie the hands of private businesses that want to protect their employees and customers. But they also show how deep into the political psyche resistance to coronavirus vaccine requirements has become, and how vaccination status has rapidly become a marker of identity.

The big picture: On a national scale, well-known GOP figures have recently escalated their rhetoric about the vaccination effort, comparing it to Nazi Germany and apartheid.

  • At a state level, there's more bite to the bark. Many Republican-led states have enacted some kind of restriction on vaccine mandates or vaccine "passports."
  • And some state lawmakers are trying to make it illegal for employers, governments or private businesses to treat unvaccinated people any differently than vaccinated people, using the same language found in federal civil rights law.

“When we think about the normal discrimination statutes…we have protected classes based on something that is sort of inherent to you, with religion maybe being the one that is a choice," said Lowell Pearson, a managing partner at Husch Blackwell, which has been tracking the bills. "But vaccination status you certainly can control."

Between the lines: The states with restrictions on vaccine requirements tend to have lower vaccination rates than those without such laws, and cases are on the rise in several of them.

  • Most of the measures are full of loopholes or have limited application, meaning unvaccinated residents may still face consequences for their decision.
  • But vaccine requirements aren't very popular in general among employers, experts said, although it is relatively common among private businesses to have different rules for vaccinated and unvaccinated employees or customers.

Rather, the laws and low vaccination rates in states that have them both stem from the politicization of vaccination.

  • "It’s difficult to see exactly why there’s such an intense reaction here, except through the lens of hyper-partisan politics; that this has just become another signal of party affiliation," said Nicholas Bagley, a law professor at the University of Michigan.

Zoom in: Montana has made it illegal to "discriminate" on the basis of vaccine status, with some exceptions within the health care sector.

  • The law prohibits businesses, governmental entities and places of "public accommodation" — like grocery stores, hotels or restaurants — from refusing to serve or withholding goods from anyone based on their vaccination status or whether they have an "immunity passport."
  • Employers aren't allowed to discriminate against or refuse to employ someone based on the same criteria.
  • “This is a civil rights statute. It absolutely is," Bagley said. "What this law is saying is that a restriction directed at the unvaccinated is prohibited in the same way as you'd be prohibited from putting up a sign saying, 'no Irish admitted.'"

Other state laws are generally more limited in scope, although there's a wide variance.

  • Alabama law, for example, prevents schools and universities from requiring coronavirus vaccines, prohibits vaccination as a condition of receiving government services, and bans businesses from refusing to serve someone based on their vaccine status.
  • Several other states have implemented measures that are targeted more narrowly to state and local governments or schools.

Yes, but: Legislation similar to Montana's has been introduced all over the country and would ban discrimination against unvaccinated people.

What they're saying: “When a legislature passes an anti-vaccine law, it sends a signal to businesses not to deploy any kind of vaccine system," said Lawrence Gostin, a law professor at Georgetown University.

  • This removes any opportunity to nudge more people toward getting the shots, he added.“The whole idea behind a good vaccination campaign is making not getting vaccinated the harder choice, and getting vaccinated the easy choice. Right now it’s the exact opposite — it’s easier not to be vaccinated."

What we're watching: “I think the question is, for those who are not vaccinated yet, what are their concerns and what is going to help them or encourage them to go get vaccinated?" said Hemi Tewarson, executive director of the National Academy for State Health Policy.

  • "If it’s not going to be tied to employment or going to schools, which in some states it’s not going to be, then what’s the incentive?”

The bottom line: The national vaccination effort is increasingly dependent on partnerships with various institutions, like schools and employers, to encourage more people to get vaccinated.

  • "If we’re ever going to get to anywhere near herd immunity, we’re going to need people to be getting vaccines where they work, where they learn, where they recreate and where they play," Gostin said. “A lot of what they're doing is really undermining the national vaccine campaign.”
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