'Neither side in that debate is correct': Are vaccine mandates unconstitutional?

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Posted at 5:15 PM, Jul 21, 2021
and last updated 2021-07-21 19:41:07-04

IDAHO — Vaccine mandates, or a company's right to require employees to get vaccinated, has been a hot topic over the last few weeks.

Afterthree major healthcare systems announced they were requiring the COVID-19 vaccine, lawmakers begandiscussing going back into session. But would any legislation passed be constitutional since Idaho is a work-at-will state?

The Idaho Constitution gives lawmakers the right to make laws, but it's a completely different conversation on whether the laws they could be trying to pass are constitutional — that's the question when it comes to potential laws repealing vaccine requirements for employers.

“If there are enough individuals on the legislature in both houses, and the governor who's willing to sign it then, yes. It can become law. Now, whether it's a constitutional law would be a whole another matter,” University of Idaho College of Law professor Shaakirrah Sanders said.

Both Idaho Democrats and Republicans have questioned whether banning or requiring vaccines is constitutional.

Related: Group gathers at statehouse opposing employer vaccine requirement

Former Idaho Attorney General David Leroy said it is hard to say exactly given it would depend on the language used in the bills to predict what legal problems or conflicts it might create, if any.

“We have both sides of this debate claiming that there are significant constitutional questions, that it would be unconstitutional to mandate vaccinations, and that it would be unconstitutional to compel employers to not mandate vaccinations. Without seeing any particular bill, and without seeing the language of that bill it seems to me that generally speaking neither side in that debate is correct,” Leroy said.

'Neither side in that debate is correct'; Are vaccine mandates 'unconstitutional?'

Leroy said House Bill 140, which would have specified employers in Idaho shall not discriminate against unvaccinated individuals, a new bill would be needed if any mandate would be attempted to apply more broadly.

Related: Idaho governor against interfering in vaccine requirements

“It's not unconstitutional for the state of Idaho to mandate no vaccination by employers and likewise it's not unconstitutional or employers to mandate that their employees take vaccinations for a reasonable cost, therefore, I don't see any conception currently conceivable that constitutionally is going to be an issue in this debate," Leroy said.

“Idaho is a work at will state that's a statutory status, right. I don't think that that is in Idaho's constitution so to the extent that is a statute the legislature can pass another statute imposing other types of laws,” Sanders said. “Let's remember that the laws making us at rule state still prohibit discrimination based on gender, based on race. So our court could see this stopping the spread of a pandemic just to be just as important.”

This is unfamiliar territory and quite different from what lawmakers in Idaho have seen before.

Related: Private employers can require vaccinations in Idaho

“Normally I would think privacy, right? Protecting an individual's privacy, your employers should not have access to your medical information, but that's in a normal situation. This is a time of pandemic, and that's why I think this is a much more difficult case,” Sanders said.

Idaho News 6 will have more as this story continues to develop.