A proposed Arkansas bill that would require employers to offer testing options as an exception to employer COVID-19 vaccine mandates became law on October 13, 2021. Governor Asa Hutchinson refused to sign the law, deeming it “unnecessary,” but he also did not veto the legislation, allowing it to be enacted. The law will take effect on January 13, 2022. According to the law’s preamble, the Arkansas General Assembly found that the US government is mandating that employers force employees to be vaccinated “against the employee’s will” and that “vaccination mandates are an overreach of authority.”

The stated purpose of the new law is to “protect employees in Arkansas from impending terminations due to vaccination mandates.” Specifically, the law states that an employer that requires or is mandated to require vaccination or immunization for COVID-19 shall provide a specific exemption process that includes options to allow the employee to produce either:

• a negative antigen detection test result or molecular diagnostic test result no more than once per week showing that the employee is not positive for COVID-19; or
• proof of immunity for the virus that causes COVID-19 or its variants, including, without limitation, the presence of antibodies, T cell response, or proof of a positive COVID-19 or its variants test, on a basis of two times per year, not to exceed once every six months, from a licensed healthcare provider.

Further, the law provides that “if multiple proven test processes are available to an employee… the employee may choose which test to take.”

The law states that the cost of the testing shall be covered through state or federal funding made available if the employee’s health benefit plan does not provide coverage for the testing. In the event that the cost of testing is not covered by an employee’s benefits or available state or federal funding, then “the cost of the testing shall be covered by the employee.”

The law also notes that if an employee is terminated due to an employer’s violation of the law, such as a termination of an employee who is not vaccinated and was not offered a testing option (including antibody testing), then the employee may be eligible for unemployment benefits in addition to other available remedies under Arkansas or federal law.

The law is scheduled to expire on July 21, 2023, provided it remains in effect and is not extended.

ANALYSIS

This is a significant development as—in addition to requiring employers to provide a weekly testing option—the law requires employers to accept proof of a prior COVID-19 infection or natural immunity/antibody test results as an exception to vaccination requirements. This approach is not consistent with CDC guidance, which recommends that people should still get vaccinated “regardless of their history of symptomatic or asymptomatic SARS-CoV-2 infection.” Further, the CDC published a study on August 6, 2021, which found that, based on the information reviewed in such study, vaccination offers at least twice the protection against becoming infected that natural immunity provides.

Notably, Governor Hutchinson issued a lengthy statement in which he disagreed with the purpose of the law, expressed concern about its impact, indicated that the bill would be costly for employees, and specifically explained that “the solution is not to put employers in a squeeze play between state and federal law. Employers need the freedom to protect their employees and their customers, and government should not interfere with that freedom through mandates.” Governor Hutchinson specifically explained that the 90-day period prior to the law becoming effective was one factor in his decision not to veto the legislation. The governor described that period as a “critical time to assess the harm and for the Courts to review the bills as well.”

There likely will be challenges to the law in the next few months and employers with operations in Arkansas should continue to monitor those developments, particularly if they are also subject to federal vaccination requirements that are inconsistent with the Arkansas law.

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