A north Alabama lawmaker who owns a construction company said he tells his employees to wear safety gear on the job but he would never require them to take a COVID-19 shot.
Rep. Ritchie Whorton, a Republican from Owens Cross Roads, is sponsoring a bill that would prohibit employers from mandating vaccines for their workers. His bill would make it illegal for employers to discriminate against employees in promotions, pay, or other workplace decisions because of their immunization status.
“Our freedoms and liberties are at stake here,” Whorton said. “How can we force somebody to take something inside their body that they don’t want to do?”
The legislation has drawn opposition from Alabama business groups, who say it will result in costly litigation that will hurt businesses.
Whorton said the business owners he has talked to support his bill.
“I don’t understand why they say I’m not for small business,” Whorton said. “I am small business. I own a small business.”
Whorton said he has 25 employees, and 22 of them are unvaccinated. He is also unvaccinated.
“Now I do tell my employees, ‘You need to wear steel-toed boots, you need to wear glasses, a hardhat, vest,” Whorton said. “But I will not tell one of my employees they have to take something in their body that could possibly harm them.”
Medical experts say COVID-19 vaccines are safe and effective and that the risk of serious side effects is remote.
Under Whorton’s bill, people who claim they have been discriminated against in violation of the ban could sue their employers and receive compensatory and punitive damages and attorneys fees if they prevail.
The Alabama Civil Justice Reform Committee, an organization that has lobbied for decades against what it considers frivolous and unwarranted lawsuits, wrote a letter to legislators urging them to reject Whorton’s bill and a related bill by Rep. Tommy Hanes, R-Scottsboro.
“The most objectionable piece of this legislation is the open invitation to sue Alabama employers and businesses,” the letter says. “Very few, if any, laws have been introduced in the Alabama legislature with more onerous provisions against business than HB 31 (Whorton’s bill).”
Associations that represent hospitals, banks, farmers, retailers, doctors, general contractors, road builders, car dealers, realtors, convenience stores, and others endorsed the letter, as did the Business Council of Alabama and the National Federation of Independent Business.
It could be several months before lawmakers get a chance to consider Whorton’s bill. The Legislature is not in session. Whorton has pre-filed the bill for the 2022 regular session, which starts Jan. 11. Gov. Kay Ivey has called a special session starting Oct. 28, but the focus of that is on redistricting and it’s unclear if legislation on other topics will be considered.
Earlier this year, Alabama lawmakers weighed in on issues related to COVID-19, vaccines, mandates, and other topics concerning the pandemic.
Lawmakers passed a bill to protect businesses from liability on claims they caused exposure to COVID-19. That new law, which passed overwhelmingly and with bipartisan support, provides civil immunity for businesses, health care providers, schools, churches, government agencies and other organizations from damages claimed by people who say they caught the coronavirus during a state of emergency.
Business Council of Alabama Vice President Susan Carothers issued a statement contrasting that bill with Whorton’s (HB 31).
“The Business Council of Alabama is opposed to HB 31 and any similar legislation that opens Alabama businesses up to frivolous lawsuits,” Carothers said. “The legislature took bold and appropriate steps in the last regular session to provide businesses with much needed immunity from COVID-19 liability. That immunity helped boost Alabama’s economic recovery. HB 31 and similar bills seek to undo that protection and put businesses, particularly small employers, at risk.”
Also this year, lawmakers passed a bill banning so-called vaccine passports. It says businesses cannot deny customers goods or services or deny entry into their places of business because of vaccination status or because of lack of documentation of vaccination status. But that new law does not prohibit employers from mandating vaccines for their workers.
Rosemary Elebash, Alabama state director for the National Federation of Independent Business, said HB 31 could compound problems for businesses already facing difficult circumstances.
“Small business owners have struggled during COVID,” Elebash said. “They have followed the health guidance. They have focused on keeping their employees and their customers safe.
“Now they’re facing a worker shortage, they’re facing supply line shortages, and then add this type of legislation that would allow lawsuits against them, including attorneys’ fees, expert witnesses, punitive damages. This is just another hardship that they’re having to face.”
In September, President Biden announced that companies with 100 or more employees would have to require their workers to be vaccinated for COVID-19 or test them weekly. Biden’s mandate would apply to 80 million employees, about two-thirds of the nation’s private sector workforce. The order is not yet in force and has drawn opposition from Gov. Kay Ivey and other officials in Alabama, as well as Republican governors in other states.
Elebash said businesses are at risk of being squeezed by Biden’s vaccine mandate, which could result in hefty fines and which the NFIB opposes, and by legislation that she said would lead to lawsuits.
“Business owners are not the vaccine police, but we have been put in that position,” Elebash said. “Business owners are put in the middle, trying to follow guidance, trying to do the best they can. And then they get hit with a lawsuit.”
Even if a lawsuit is unsuccessful for the plaintiffs, it carries a cost for businesses, Elebash said.
“You’re going to have to hire somebody to defend yourself,” Elebash said. “Your business is going to be highlighted because they are being sued. So it creates a real problem for small business owners.“
But Whorton his bill would not have to result in more legal costs for businesses.
“If you’re not forcing somebody to do something, you’re not going to have a lawsuit anyway,” Whorton said. “I believe the bill is a good bill. It will actually help small businesses.”
Whorton said he’s not flatly against vaccines.
“My wife has taken the vaccine, and she chose to do that,” Whorton said. “I chose not to do that, OK, I’m not taking the vaccine. Nobody is going to force me to take the vaccine, and that’s the end of it. It’s my body and my choice.”
Whorton’s bill includes language intended to try to block the enforcement of any federal vaccine mandates, saying they violate the 10th Amendment. Alabama Attorney General Steve Marshall joined 23 other attorneys general in saying they intend to file a lawsuit to try to stop the Biden mandate.
Whorton said he is uncertain what chances his bill will have against the opposition from the business associations, which have influence in the Republican-led Legislature. A similar bill failed in the Texas legislature after opposition from business groups.
“I don’t know where it will go, I’ll be honest with you, but I’m going to try hard to stay on top of it and make sure we can do something for folks’ freedom and liberty,” Whorton said.
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