Anti-vaccine protestors at the Capital on Oct. 11, demanding a special session to outlaw mandates. Photo by Ian Karbal.

Beginning in January, a new law will make it significantly easier for West Virginians to claim exemptions from employer COVID-19 vaccination mandates.

Largely, the new state law codifies what already existed in federal disability and discrimination laws: an allowance for religious and medical exemptions from vaccination requirements. But it carves out even more exemptions than allowed by federal law, and represents the first crack in West Virginia’s previously strong vaccine laws, which have never before allowed these types of exemptions. And experts are concerned that making these changes for a single vaccine is a move toward the further politicization of public health decisions. 

“It’s clear that this has become a kind of political rallying point,” said James Colgrove, a professor at Columbia University’s Mailman School of Public Health. “We know that [vaccine] mandates work and mandates help to protect public health, and that they are ethically and legally justified.”

West Virginia legislators quickly passed the measure in October in response to the Biden administration’s announcement that it would require COVID-19 vaccines for employees of larger companies, federal contractors and employers of health care workers. They did so against the advice of both doctors and lawyers: “I think what we’re doing here today is the right thing to do regardless of what the lawyers and doctors tell us,” said Senate President Craig Blair, R-Berkeley, adding that the bill was intended to protect individual freedom.

“To be quite honest with you, I think you should get the vaccine,” Blair said. “But again, it’s a personal choice because that’s what this country was founded on.”

When those federal emergency orders were released in early November, a group of Republican state attorneys general, including West Virginia’s Patrick Morrisey, rushed to challenge them. 

But even while the future of the federal mandate is up in the air, West Virginia’s new law is on the books. Health care companies and business leaders say the scope of the exemptions, and the ease with which they can be obtained, may bring them into conflict with more stringent federal regulations. And public health experts warn there could be an increase in COVID cases for the same reasons.

What’s new in the law?

Historically, West Virginia has been a national leader in getting kids vaccinated, with state vaccination levels above the national average. This is in part because West Virginia is one of six states that doesn’t have a state law on the books allowing parents and children to claim philosophical or religious exemptions to childhood vaccinations, a requirement for entering public schools.

But even without their own laws, states are required to allow for religious and medical exemptions as laid out by federal disability and anti-discrimination laws, which exist to balance personal freedom and public health concerns.

The new law does not affect vaccination requirements for public school children; it specifically blocks employers from requiring COVID-19 vaccines as a condition of employment. But it will make it significantly easier for adult West Virginians to claim a religious exemption to the vaccine, and will broaden what counts as a medical exemption to COVID-19 vaccinations specifically.

The push to open up the exemptions intensified in September, when President Joe Biden announced that as part of his national vaccination strategy, his administration would issue an emergency order requiring some businesses mandate employees be vaccinated for COVID-19. 

Almost immediately, West Virginia lawmakers, as well as Morrisey, panned the proposal, and Republican legislators got to work considering how to preempt it.

Gov. Jim Justice, who has spent the pandemic walking a fine line, vocally pushing public health measures like mask wearing, social distancing and, eventually, vaccinations, while doing little legislatively to enforce such behaviors, also panned the idea of a federal vaccine mandate. But at the same time, during a mid-September press conference, he labeled requests from Republican legislators to call a special session explicitly to ban such a federal, or even private business effort “almost comical.” 

But a vocal group of Republicans continued to call on him. And in October, as more Republicans rallied around the idea of challenging the Biden administration’s proposed orders, Justice added the COVID-19 exemption bill to the agenda for a special legislative session, meant to address redistricting and the appropriation of federal money. He would now allow lawmakers to debate, and ultimately pass the new law — even as Biden’s administration still worked out the final details.

The fight to push it through was a messy one, with the business community led by the West Virginia Chamber of Commerce pushing against the Republican-led effort. The bill was ultimately opposed by all but one Democratic lawmaker. But a number of Republicans also voted against it, including members of the leadership like House Speaker Roger Hanshaw, R-Clay, and Senate Majority Leader Tom Takubo, R-Kanawha. 

The law, which will go into effect January 22, will allow any West Virginian who’s required to get a COVID-19 vaccine by their employer to claim a medical exemption with a doctor’s note. It also makes it very easy to claim a religious exemption: Under West Virginia’s new law, all it takes is a notarized document saying vaccinations conflict with an employee’s religious beliefs. That’s much easier than under federal law, which permits several questions and an interview to determine if a religious belief is “sincerely held,” or for employers to determine what accomodations can be made for employees interacting with at-risk populations. 

Studies have shown that the easier it is to get vaccination exemptions, the more likely it is for vaccine-preventable diseases to spread. Until now, most examples were among school-age children, because most public school systems mandate kids be vaccinated for a laundry list of infectious diseases. 

Take California. Until recently, the state had some of the most lenient vaccine exemptions in the country, allowing for personal belief exemptions from laws mandating childhood vaccinations before school entry. But in 2014 and 2015, a measles outbreak at Disneyland spread to multiple states, and to several communities in California with low childhood vaccination rates. After that, lawmakers eliminated the exemptions, making the state one of only three at the time — including West Virginia — that didn’t allow religious or philosophical exemption to school vaccination requirements.

After California tightened its exemption laws, vaccination rates among the state’s kindergartners jumped from 90% in 2015 to 95% in 2018. The jump brought the kindergartners’ vaccination rates past the 94% threshold for community immunity from measles.

The Biden administration’s plan to require COVID-19 vaccines for adults who work for large employers was the first time that the federal government had made a decision like this regarding employer vaccine requirements, which previously have been left up to individual companies.

“We’re trying to do mass vaccination of the adult population,” said Colgrove. “We’re very much living in uncharted territory here.”

But while West Virginia’s new law only applies to employers mandating COVID vaccinations for a mostly adult workforce, it could be a harbinger of things to come. Some West Virginia lawmakers are in favor of allowing for exemptions across the board.

“I’m in favor of not having mandates,” said Sen. Patricia Rucker, R-Jefferson, who chairs the Senate Education Committee and was the lead sponsor on a failed 2017 bill that would have allowed religious and conscientious objections to both childhood and employer vaccine mandates. “I believe that decisions for vaccinations and medical treatment are best left to the individual to decide whether they want to or not.”

Concerns about conflicts

Generally, federal law trumps state law. But gray areas and ongoing legal challenges around the COVID-19 vaccination mandates have left West Virginia business owners concerned they will be forced to choose between violating one or the other.

The West Virginia Chamber of Commerce, along with a host of other business interest lobbies that historically support Republican lawmakers, opposed the bill, in part because of these reasons, and in part because they believe such decisions should be left to employers.

“It’s putting employers into a position of having to choose whether they violate federal law or whether they violate state law,” said Brian Dayton, vice president of policy and advocacy for the West Virginia Chamber. “There are multiple problems with that piece of legislation.”

A CVS employee preparing to give a patient the Pfizer COVID-19 booster shot. Photo by Douglas Soule

Ultimately, courts will have to determine how the two laws interact, but in the meantime large businesses are facing difficult decisions. If it stands, the federal order requires their employees to be fully vaccinated by Jan. 4, which because of the vaccine timeline means employers would have to give directives to employees by early December.

In a floor speech during debate over the bill, Senate President Blair acknowledged criticisms that the bill was anti-business, and said even though his party typically aligns with business interests, “to say that [Republicans] never do any bills that tell businesses what they can do and what they can’t is false It happens all the time. What we do, as conservatives, is say the government shouldn’t be overreaching.”

These conflicting rules have caused particular concern in the health care sector. The federal emergency orders have made it mandatory for health care workers to be vaccinated against COVID-19 for health facilities to get reimbursement from Medicaid and Medicare. These two sources of funding, along with state welfare funds, make up roughly three quarters of funding to West Virginia hospitals.

Whether or not this federal rule governing health care employers supersedes the new state law is something West Virginia hospitals are trying to figure out, and will likely be worked out in court down the road if the rule withstands legal challenges. But Jim Kaufman, president of the West Virginia Hospital Association, says the funding issue will probably take precedence for most West Virginia hospitals. 

“I think that’s why you’re going to see most health care providers across the country follow [the federal law],” he said. “Does that mean there won’t be state issues or state challenges? I can say there probably will be and that’s where the courts will be deciding.”

Kaufman also said the hospital association opposed the bill because it could cause serious harm for vulnerable patients. Vaccination mandates, like for flu shots, were extremely common in hospitals even before the pandemic, and employers would work to place employees that required exemptions in situations with lower risk of potentially exposing vulnerable patients. Though sometimes, these issues aren’t able to be resolved. In 2010, Charleston Area Medical Center fired two of its roughly 6000 employees at the time over a refusal to comply with a flu shot mandate.

“We want to make sure we’re using all means available to protect the patient that we’re caring for, and I think that’s a unique factor that’s a little different for health care,” Kaufman said.

Since the announcement of the state law, hospitals in West Virginia have had to adjust their employee vaccination strategy. WVU Medicine, Charleston Area Medical Center and Mountain Health Network had previously announced they’d require employees to be vaccinated for COVID-19. But all delayed their requirements after the new state law passed, and with federal rules yet to be released. 

Those three hospital networks — along with Walmart — represent the four largest private employers in the state.

Ultimately, at least one of these groups, WVU Medicine — West Virginia’s single largest private employer — has since decided to follow the federal guidance.

A WVU Medicine spokesperson said the health care system had decided it should follow the federal guidance governing Medicaid and Medicare, rather than West Virginia’s law or the rules issued by the Occupational Safety and Health Administration, “to continue participating in Medicare and Medicaid, which provide health insurance to approximately 70 percent of our System’s patients.” 

They added that employees not fully vaccinated, or in receipt of an agreed to medical or religious exemption, “will not be permitted on the [West Virginia United Health System] premises.”

Politicizing health care

At the end of the day, according to Columbia University professor Colgrove, the goal should be policy that promotes vaccinations as much as possible.

“Infants, the elderly, people who are immunocompromised — all of those people can be harmed by unvaccinated members of their community,” he said. 

Moreover, the longer a virus circulates unmitigated, the more likely it is to develop a vaccine-resistant mutation, and breakthrough cases, while relatively uncommon, still sometimes lead to severe complications.

“A law like [West Virginia’s banning vaccine mandates] is bad for everybody, just because it’s bad to have a deadly infectious disease circulating in the community, even if you yourself are vaccinated,” Colgrove added.

Nearing the end of a two-hour debate over the bill on the Senate floor, Takubo, the Senate majority leader, stood up for an uncharacteristically-long floor speech. While he said he understood the decision to give employees choice, he could not back a bill that required hospitals to allow broad exemptions in their employee vaccination mandates.

“I’ve had to take care of a lot of people that I’ve personally known, that I’ve seen, and I’ve watched them die,” said Takubo, a pulmonologist who has treated COVID-19 patients. “When you actually live it, and go through it … it’s hard to understand what I saw this morning when I was running through the hospital. But for those families and those patients, it’s extremely real.”

And as courts and companies work to sort out how state and federal rules interact, both state and national officials leading the response to COVID-19 have warned that the upcoming holiday season and cold winter months could mean another spike in COVID-19 cases and hospitalizations.

Ian Karbal is a Report for America corps member, and the state government watchdog reporter for Mountain State Spotlight.