COVID Surge: Recent Legislation of Note for Employers

This article was authored by WLJ Labor & Employment attorney Shelby Howlett. 

Arkansas is bracing for a third surge of the COVID-19 pandemic due to the spread of the new Delta variant. In fact, national news outlets have named Arkansas as one of the top pandemic hotpots in the country. Only about 35% of all Arkansas residents are fully vaccinated, and the number of new cases is higher than they have been since March of this year. As the number of active cases throughout the state climbs, it is important for businesses and employers to reevaluate their COVID-19 protocols, especially in light of several acts passed by the Arkansas legislature this Spring.

• Act 1002 stripped the ability of local and state agencies or officials to enact face mask requirements. The legislature has reserved the right to enact a mandatory face mask policy. However, the new law does not apply to private businesses, state healthcare facilities, or facilities operated by the Division of Youth Services or Department of Human Services. Therefore, private employers may still require employees and patrons to wear a mask on their business premises.
• Act 559 protects businesses from civil liability and tort claims relating to the spread of COVID-19 on their business premises or during activities managed by the business. A business is protected by the Act so long as it acts in good faith while attempting to comply with governmental health and safety directives. Employers should remain apprised of the latest recommendations from state and local health agencies as the number of cases escalates and make a good faith effort to follow the latest guidelines.
•  Act 977 prohibits state and local governments from mandating or coercing an individual to take the COVID-19 vaccine for the purposes of education, employment, or entry or services. The Act does not affect the ability of private employers to require or incentivize the COVID-19 vaccine. It also provides a process under which state-owned or controlled medical facilities may be granted an exception to the prohibition on a vaccine mandate. For example, a spokesperson for the University of Arkansas Medical School stated last week that while it does not currently have a vaccine requirement for its employees, it may have one in the future. UAMS and other state-run medical facilities would have to seek legislative approval before implementing such a requirement.
• Act 1030 prohibits state and local officials and agencies from requiring “vaccine passports” for any purpose. It also appears to prohibit private businesses from conditioning entry, travel, education, or services on having documentation that an individual has been vaccinated against COVID-19. The Act doesn’t include any exceptions for the healthcare or nursing home industries, and it seems to continue in perpetuity regardless of whether the vaccine is fully approved by the FDA in the future.

As employers have done for the past year and a half, it is important to stay up-to-date on the latest health and safety guidelines and laws concerning the COVID-19 pandemic. It is recommended that employers seek the advice of legal counsel before implementing any new COVID-19 procedures.