Sen. Tara Nethercott, R-Cheyenne, speaks during the special session on Tuesday, Nov. 2, 2021, at the Capitol. Rhianna Gelhart/Wyoming Tribune Eagle

CHEYENNE – State lawmakers are beginning to question the interpretation of the special session bill recently signed into law by Gov. Mark Gordon after the suspension of the federal vaccine mandate.

The Occupational Safety and Health Administration recently halted the rollout of the Biden administration’s new rules, which would have required employers with 100 or more employees to have their entire staff vaccinated by the new year or face regular virus testing. The announcement was made after the 5th Circuit U.S. Court of Appeals ordered OSHA not enforce the mandate due to pending judicial review. The case has since been assigned to the 6th Circuit U.S. Court of Appeals.

The recent ruling upholding a stay came after Texas Attorney General Ken Paxton filed a challenge in October with other southwestern states.

Although this does not impact the COVID-19 vaccination order for health care workers at facilities that participate in Medicare and Medicaid programs, it does bring House Bill 1002 into play in Wyoming. That was the only piece of legislation to survive the special session, and was never meant to be as extensive, or intrusive, as other bills brought forward. The heart of the bill is nearly six pages of findings, and a resolution, which asserts the state’s right to defy the federal mandate.

“The federal government does not have the right to impose such mandates on the states, and doing so violates the 10th Amendment to the United States Constitution and Article one, Section 38 of the Wyoming Constitution,” it states, in part.

Along with outward support and authorization for litigation laid out in the bill, the governor and attorney general’s offices were appropriated $4 million for legal challenges to the federal mandate. Gordon filed suit on Nov. 5, supported by other bordering states wishing to challenge the vaccine mandate that they consider to be unconstitutional.

While many lawmakers in the Republican-dominated Wyoming Legislature support the governor’s legal battle, some are curious as to how the language in the final pages of the bill will be enacted now that there is a stay at the federal level.

Because in Section 2, subparagraph B of the bill, there are some protections set out for Wyoming residents.

Legislators wrote, “No public entity shall enforce any mandate or standard of the federal government, whether emergency, temporary or permanent, that requires an employer to ensure or mandate that an employee shall receive a COVID-19 vaccination.”

With a narrow definition of public entity and certain legal requirements to be met before it went into effect, there were doubts during the special session as to how far, or when, this provision would reach into public life.

Now that the OSHA rules are suspended, only two weeks after the ending of the special session, the law may be in effect. This is due to Subsection D of the bill that declared no public entity can enforce any mandate or standard of the federal government “during any period in which there is a federal judicial stay applicable in Wyoming or is otherwise repealed, withdrawn, superseded or declared by a federal court of competent jurisdiction to be unlawful or unenforceable.”

But legislators have conflicting opinions about whether the law has any effect, who it affects and how it is applicable.

Rep. Albert Sommers, R-Pinedale, the main sponsor of HB 1002, said he sees the legislation working exactly as it should, and that it has gone into effect due to the decision by the federal appeals court. The bill prohibits a broad range of state and local government entities, boards and agencies from enforcing the federal vaccine mandate.

He also said, based on his interpretation, if an individual in the state of Wyoming wanted to enact their own private vaccine mandate, this legislation would not apply to them.

“With the effect and law,” he explained, “this is strictly federal vaccine mandates.”

The bill doesn’t include any defined penalties for violating its provisions, however, and Sommers said he couldn’t confirm whether an individual could take a public entity to court for violating the new state law.

He said the consequence could just be a correction, rather than a fine or punishment. This is not the kind of protection many constituents wanted going into the special session, but Sommers considered HB 1001 – killed on the last day of session – to be the legislation with teeth.

“The idea is, ‘Hey, this is state law, public entity,” he said. “‘You’re an institution of that government, and you need to follow the law.”

But there are other state lawmakers, including Sen. Tara Nethercott, R-Cheyenne, who said there might not be a law for public entities to follow based on the unclear language in the legislation.

“The legislation and the stay don’t really affect each other,” said Nethercott, who is a lawyer. “Because when we look at subparagraph B, in Section 2, it says that no public entity shall enforce any mandate or standard of the federal government. Since there is technically no mandate, or rule, or standard that is currently in place right now because of the suspension, they are not enforcing it.”

With no mandate or standard of the federal government in place, she said she believes there is nothing for the public entity to even enforce, making the legislation null. It leads to the question of what the state is telling them not to do. And similar to Sommers’ theory, this leaves a possibility for independent vaccine mandates by public entities, which could not be shot down by HB 1002.

Nethercott also went so far as to say the law cannot be enacted right now due to her opinion that “OSHA voluntarily, on its own accord, suspended the rules pending the outcome of legal cases, but it wasn’t as a result, necessarily, of a judicial stay.”

Either way, she said she doesn’t believe HB 1002 provides any protections for employees in circumstances where they may be required to take a vaccine or other health measures in response to the novel coronavirus.

Rep. Mike Yin, D-Jackson, said he disagrees. While the stay is in effect, he doesn’t believe a public entity could enforce the federal vaccine mandate or create a vaccine mandate on its own. He said Nethercott’s interpretation would have to be decided by the judicial system, as he believes the intent of the Legislature was to shut down any requirement put forth by a public entity.

“My guess is that you’d have to go to court to decide whether or not it means if the federal government applies to the standard or mandate, as well,” he said.

Although there are discussions as to how certain words may apply, Yin doubts there will be any chance for a legal determination regarding HB 1002 within the state. He said this is due to a lack of desire by public entities to put their own vaccine mandate in place without the requirement by the federal government.

“For example, the police department in New York City required all of their officers to be vaccinated,” he said. “But that’s something that I don’t think would happen in Wyoming.”

Rep. Karlee Provenza, D-Laramie, said it was worrisome that any members of the Legislature were having to make these queries. She shared the concerns of her colleagues regarding the bill’s language, but she said legislation should not lead to more questions.

“Legislation should not be difficult to understand,” she said. “Legislation should tell people exactly what the rules are.”

She said she now wonders if the bill will have to be clarified or fixed in the upcoming 2022 budget session, as well as if its interpretations will be challenged in court. Her position is that HB 1002 needs to be repealed entirely, but she said she understands not everyone feels that way.

“I think something very clearly came out of the session,” said Provenza, “and it’s confusion.”

Jasmine Hall is the Wyoming Tribune Eagle’s education reporter. She can be reached by email at jhall@wyomingnews.com or by phone at 307-633-3167. Follow her on Twitter @jasminerhphotos and on Instagram @jhrose25.

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