Kansas attorney general accuses KU, KSU of violating new vaccination exemption law

TOPEKA — The attorney general notified Kansas State University and the University of Kansas that both were in violation of a new state law broadening access to religious or medical exemptions to federal COVID-19 vaccination mandates.

Attorney General Derek Schmidt forwarded a letter, obtained by the Kansas Reflector, to KU chancellor Doug Girod, KSU president Richard Myers and Kansas Board of Regents president Blake Flanders asserting both universities deployed “intrusive written application materials when evaluating an employee’s request for exemption.”

Methods at KU and KSU violate a law adopted Nov. 22 during a special session of the GOP-led Kansas Legislature and signed the next day by Democratic Gov. Laura Kelly, Schmidt said.

Schmidt, a Republican, previously warned that he would issue cease-and-desist notices, but hadn’t identified targets of that effort. No other individual letters regarding the state law on vaccination mandates has been set out by the attorney general, an official said.

“I request that the Board of Regents promptly review whether any further changes in policy or practice are needed to bring KU, K-State or any other regents institution into compliance with state law or with common sense timelines,” Schmidt said.

Flanders previously warned state legislators the six Board of Regents universities could lose hundreds of millions of dollars in grants and contracts if they failed to comply with President Joe Biden’s mandate on vaccinations for the coronavirus, especially as it related to faculty, staff and students designated as participants in federal contracts.

In terms of the attorney general’s letter, Flanders said Board of Regents universities would “remain in compliance with all previously existing and new applicable statutes.”

“Since issuing the initial guidance on federal vaccination requirements for federal contractors, I have been clear that state universities will follow all state laws in implementing these requirements,” Flanders said. “The factors impacting the federal contracting requirements have been shifting rapidly, particularly with new statutes added in the special session and moving federal deadlines.”

A spokesperson at Kansas State said Tuesday the university had no comment about the attorney general’s letter, while a representative of KU said the administration updated exemption forms and processes to comply with the state law and the federal executive order.

University policy

In October, officials at KSU, KU and Wichita State University announced plans to require all employees to be vaccinated to comply with executive orders issued by Biden in September. Each of these public universities receive federal funding for research and other activities. The universities pledged to consider medical or religious exemptions, and each established an exemption application process.

The Legislature forced a one-day special session for the purpose of passing a bill designed to make it easier for public- and private-sector workers in Kansas to obtain vaccination exemptions. Lawmakers emerged with a statute offering ground rules for religious and medical exceptions to inoculation orders related to COVID-19. That included a provision allowing people to apply for exemptions simply by signing a written request.

Kansas law was amended to enable any employee not granted an exception to file a complaint with the Kansas Department of Labor in anticipation of civil action by the attorney general to seek sanctions against companies or employers. The law contemplates the attorney general could petition a district court to issue fines up to $50,000 per offense.

The state law meant universities could no longer investigate whether an employee’s religious claim was made with sincere conviction.

The application procedures adopted by KU and KSU run counter to the new state law, Schmidt said.

For example, the attorney general said, forms used by KSU and KU asked the employee requesting a vaccination exemption to “describe the nature and tenets of your sincerely held religious belief, practice or observance,” and seek third-party documentation supporting a person’s claim of religious faith. KU also planned to deploy a committee to review requests, while K-State contracted with a human resources consulting firm to assist in examining exemption applications.

“These sorts of inquiries into the sincerity of a  requested waiver are inconsistent with the new law,” Schmidt said in the letter.

Deadlines not logical

In addition, the attorney general objected to the “arbitrary” decision by KU and KSU to require employees to apply for religious or medical waivers by Nov. 15. The deadline was “unjustified,” Schmidt said, because the federal government extended a deadline for federal employees and federal contractors to be fully vaccinated to January. In KU’s case, officials planned to stick with a Dec. 8 deadline for vaccination compliance.

“No such deadline is logically necessary or even helpful in regard to a request for religious waiver because no evaluation of an employee’s request for a religious waiver need be performed,” Schmidt said.

Schmidt said KU’s use of a website and e-mail systems to inform employees of a deadline for vaccinations tied to the Biden mandate ran afoul of a separate state law forbidding use of tax dollars to implement vaccination requirements. He directed KU to abandon early deadlines.

In early November, KSU modified its religious exemption form after criticism by lawmakers concerned interrogation of employees about religious beliefs amounted to discrimination. It asked employees to disclose, under threat of being fired for dishonesty, if they had ever been vaccinated.

‘Not optional’

John Milburn, a spokesman for the attorney general’s office, said KU and KSU came under scrutiny due to public reporting about campus policies or by concerns expressed by university employees. He said no other individual letters to suspected offenders had been sent by Schmidt.

“Compliance with the new state statute regarding medical and religious exemptions for vaccine mandates is not optional,” Milburn said. “Violations may subject an employer, including universities, to complaints from aggrieved employees that ultimately could result in judicial enforcement including fines.”

Milburn said the objective of the letter was to provide information helpful to universities avoiding financial liability and to protect university employees.