In a case that started in Leawood, the Kansas Supreme Court will consider whether a state law goes too far in forbidding employers to ask follow-up questions to employees seeking religious exemptions from vaccine requirements.
Ultimately, the state’s highest court could decide whether the 2021 law — which was approved in a high-profile special session notable for a rally from vaccine mandate opponents — is preempted by federal law and therefore unconstitutional.
The court will review whether a decision by Johnson County District Judge David Hauber was correct in his ruling against the state law in 2023. The six supreme court judges heard arguments Wednesday in the appeal of that ruling by the Kansas Department of Labor.
A job candidate asked for a religious exemption from COVID-19 shots
The case dates back to 2021 when the COVID vaccine and government mandates were relatively new.
Powerback Rehabilitation, LLC, made a job offer to Katlin Keeran, a candidate for an occupational therapy assistant position, on Nov. 9, 2022. According to court records, Powerback made the offer contingent on proof of vaccination, absent an approved exemption.
The company made universal COVID-19 vaccination a policy in 2021 to protect its mostly elderly patients, according to Powerback’s legal brief. A vaccine had recently been made available, and at the time, the Delta variant of COVID-19 was surging.
Had an exemption been granted, Keeran might have been allowed to work wearing an N95 mask, according to the state’s brief.
Keeran submitted her request for the exemption, saying, “I believe in seeking alternatives to vaccines made using cell lines from aborted fetuses.” She also provided a letter of support from a friend.
Powerback inquired further, asking whether Keeran had received other vaccinations in the past.
According to the court papers, she acknowledged getting a flu shot in a previous year. She later added, “I am not familiar with this vaccine, but I decline to receive it as I am not familiar with it.”
Based on her answers, Powerback officials decided she did not meet the requirements for a religious exemption.
State labor department took job candidate’s side
It was that extra bit of probing that prompted the first legal challenge to the Kansas Department of Labor.
Keeran said she should have been exempted and the company violated a 2021 Kansas law that says an employer must grant an exemption at face value and without looking into the sincerity of the religious beliefs.
The labor department took Keeran’s side.
Powerback then appealed the department’s ruling to Johnson County District Court, which overturned it.
Judge David Hauber ruled that the Kansas law conflicted with federal law by adding the restrictions on questions.
In this case, the federal law, known as the Interim Final Rule of the Department of Health and Human Services, stated that facilities like Powerback have to require staff vaccinations in order to continue getting Medicare and Medicaid funds. The rule allows for religious exemptions but does not prohibit further questioning.
The company pointed to guidance from the federal Equal Employment Opportunity Commission saying employers would be justified in asking about religious conviction if they were aware of information that would justify asking.
Powerback used Keeran’s statements on the exemption application as that justification.
“An untenable situation”
Melody Rayl, representing Powerback, argued that the state law imposed broader parameters on employers than federal law allowed by forbidding questions.
It also posed an undue hardship on the employer by forcing a choice between following state law and losing federal funding, she argued.
“Powerback was put in an untenable situation. Either they comply with the (federal rule) and get fined $50,000 by the state of Kansas or they comply with the (state) vaccine act and run the risk of losing funding that puts them out of business,” she said.
Dwight Carswell, deputy solicitor general with the state Attorney General’s office, countered that federal Medicare and Medicaid administrators had not shown a tendency to claw back funding because of vaccine violations in the past and were unlikely to do so.
He also argued that the company could have placed Keeran in a position away from contact with medically vulnerable patients.
However, Rayl countered that there was no way to know whether the Medicare and Medicaid administrations would have dropped funding because the situation never played out.
“It was certainly a plausible outcome,” she said.
Gaming the system?
Powerback’s arguments found traction among some of the justices, who said they struggled to see how the state law was not in conflict with the federal law.
Justice Dan Biles asked Carswell whether Kansas law effectively allows job applicants to get around vaccine requirements by claiming religious beliefs that they don’t have.
“You can game the Kansas system by checking the box and claiming it’s a religious belief and nobody gets to look beyond that,” Biles said.
Carswell conceded there is a risk of that but said lawmakers had to make a decision on whether to be overly inclusive or underinclusive in allowing exemptions.
Justice Caleb Stegall questioned whether federal and state laws were really in conflict, noting that both federal and state law offer protection against discrimination, but the state offered broader protection.
He said there’s no liability for employers who grant the exemption under federal law without ab interactive process.
Rayl said the state law frustrates the purpose of the federal law and limits the care provider’s ability to protect its patients.
The court took the case under advisement and will rule later.
This story was initially published by the Johnson County Post.
