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Legislative Reconvening Recap
November 15 - 17, 2021

Three Days - $90K - A Letter to Show For It

After a restful holiday weekend, I had time to reflect on the convening of the Legislature two weeks ago; I thought I would share some of those thoughts and information to provide clarification about some of the questions that arose in committee meetings. 

As you may have seen in the news already, we convened for three days, costing taxpayers approximately $90K, and the only bill that passed both bodies was a resolution, which has no force of law, to send a letter to the Congressional Delegation and the Federal Government that the Idaho Legislature opposes any testing or vaccine requirements.  That’s high price to pay when postage for a first class letter may have been a more conservative approach.
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Read an opinion piece by Rep Berch who noted, Idaho's legislative session was a waste.                    

I did not support any of the bills presented because...

1) The Senate adjourned in May and coming back to session without the Governor's action put us on shaky legal ground, meaning any legislation passed may not stand up in court. Litigation would have to settle that and we have racked up enough in court fees on the taxpayer dime;

2) I believe the House circumvented the constitution by its stunt to recess and puts in question our part-time legislature. I don't believe that Idahoans want a full time legislature, and I encourage voters to remember how this 311 day session went. When you see the November ballot, you will get to vote on whether the Legislature can call itself back into session in the future. I voted against SJR102 in March and I hope that most Idahoans will reject this amendment to Idaho's constitution. 

3) The hasty way that the bills were introduced did not inspire confidence in the process for input nor confidence in the language. Many of the bills were redundant with current laws and confusing. 

4) Many of the bills interfered with or put undue burdens on Idaho businesses and individuals. 

5) Many of the bills were very one-sided and did very little balance concerns with public safety and individual rights. 

I was very proud of the Senate State Affairs Committee who lived up to their past reputation of being the body of reason and a backstop for poorly vetted legislation. They only heard three bills from the House and voted to hold them in committee after lengthy hearings which seemed to provide some people a place vent, while some people set the record straight on the dangers of Covid 19 and the responsible measures some businesses were trying to take to keep workers and customers safe. 

In the end, the legislature did not do any real harm, other than waste taxpayer dollars on creating a political stage for campaign season, which is not appropriate leadership in my opinion. 

As Rep Berch recounted, "One legislator confided in private it really didn’t matter if any of the bills actually passed. What mattered was creating talking points for reelection campaigns next year just by introducing them (e.g. “I tried to do . . .”).
My favorite committee assignment ever! 

The committee to tell the House that the Senate is ready to Adjourn Sine Die ---- AGAIN!   photo by Idaho Ed News

Here is a list of the bills filed during session

House Bills
 

HB 412—Prohibiting Vaccine and Vaccine Passport Status Discrimination

This bill passed the House 48 to 22 and would have prohibited discrimination because of vaccine and vaccine passport status.  The bill contained exemptions for schools, daycares and those nursing homes that could not comply because of conflicting Medicare and Medicaid rules.  The bill was assigned to the Senate State Affairs Committee but was not heard and died there.   

HB 414—Religious Freedom for Mandated Medical Treatment

This bill passed the House 46 to 24.  It would have prohibited employers from questioning the sincerity of an employee’s religious objection to required medical treatment.  The bill was assigned to the Senate State Affairs Committee but was held there after its hearing and died.

HB 415—Exemptions from Workplace Vaccine Requirements

This bill passed the House 43 to 24 with three absent.  It would have provided employees medical, religious, philosophical, and natural immunity exemptions from workplace vaccine requirements.  The bill was not assigned to a Senate committee and died.

HB 417—Worker’s Compensation for Injuries from Employer Required Vaccines

This bill passed the House 67 to 3 and would have clarified that injuries arising from employer-mandated vaccinations are compensable under Idaho’s workers compensation laws.  I strongly favor this concept, but I could not accept portions of the bill which would have changed legal standards governing worker’s compensation claims and which would have imposed costs on Idaho employers.  I hope for the opportunity to participate in bringing back a modified bill in January.  The bill was assigned to the Senate State Affairs Committee, but was held there after its hearing and died.

HB 419—Barring Firings for Not Vaccinating

This bill passed the House 41-27, with two absent.  It would have created a "don't ask don't tell" policy to prevent Idahoans from being fired because of their COVID-19 vaccination decisions.  The bill was assigned to the Senate State Affairs Committee but was held there after its hearing and died.

HB 421—Prohibiting Requirements to Prove COVID-19 Vaccination or Test Results

This bill passed the House 50 to 18, with two absent, and would have codified and expanded the Governor’s executive order against requiring proof of a COVID-19 vaccination or a negative test.  Violators would have been subject to civil penalties.  The bill was not assigned to a Senate committee and died.

HB 429—Exemptions from School Mask and Other Mandates

This bill passed the House 42 to 28 and would have allowed school children to be exempted from public school mask, Plexiglas enclosure, or other medical mandates based on medical, religious, or personal reasons.  The bill was assigned to the Senate State Affairs Committee, but was not heard and died there.

Senate Bills

All seven Senate bills were printed in the Senate State Affairs Committee.  The Republicans in effect agreed to print the Democrats’ bill and the Democrats in effect agreed to print the Republican bills.  Two of the “bills,” Senate Joint Memorial 105 and SCR 113 went directly to a full Senate (more on those below).  It was essentially agreed that four of the remaining bills (including the Democrats’ bill) would be given an informational hearing but held in committee without a vote.  Two Republican bills did not receive an informational hearing and were also held in committee without a vote. 

SB 1222—Requiring the Use of Federal COVID-19 Funds

This bill was brought by the Senate Democrats to assure that all federal COVID-19 funding available to Idaho is put to good use.  Although Idaho has received $1.1 Billion of this money, it has only allocated 4% of it and only spent 1% of it.  The bill proposed to use the money to

  • remove obstacles to voluntary vaccination;
  • help protect employers and employees against costs associated with vaccination;
  • assure that those needing or wanting COVID testing can obtain rapid tests;
  • help with workforce issues created by the pandemic; and
  • create a vaccine injury compensation program because the federal program is not working for COVID vaccinations.

We plan to improve this bill and bring it back in January.  

SB 1223—Clarifying the Idaho Health Freedom Act

This bill clarifies the Act as it relates to COVID-19 vaccinations and employment in Idaho.

SB 1224—Exemptions to Employer Required Vaccination

This bill allows medical, religious, and natural immunity exemptions from employer-required COVID-19 vaccinations and requires employers to notify employees of these exemptions.

SB 1225—Allowing Workers to Refuse Employer Required COVID-19 Vaccinations

This bill allows an employee to refuse an employer-required COVID-19 vaccination and requires employers to notify employees of this right.

SCR 113—Federal Overreach Legal Defense Fund

This resolution would have authorized the Speaker of the House and the President Pro Tempore of the Senate to hire lawyers to pursue lawsuits against the federal government with money from the fund.  When the legislation to put money into the fund failed in the Joint Finance and Appropriations Committee, the resolution became a dead letter and did not receive a vote in the Senate. 

SJM 105— Notice to Biden Administration of Opposition to Vaccine Mandates

This memorial notifies the Biden Administration that the Idaho Legislature strongly opposes the Biden Administration’s vaccine and testing mandates.  The memorial passed the Senate over the “no” votes of the Senate Democrats and then passed the House.

Boise High school student testifies about the safe guards needed to keep people healthy during the pandemic. So proud of these young leaders! So mature and reasonable.
 
Your Existing Rights Pertaining to Vaccines
 
In the legislative meetings that were held in the convening of the legislature Nov. 15-17, 2021 legislators were presented with bills and testimony which showed that more could be done to help the public better understand their existing legal rights pertaining to COVID vaccinations. I hope the following will be helpful to you.
 
Biden Administration Mandates 
On September 9, 2021, the Biden Administration issued Executive Order Nos.14043 and 14042 and announced action by the Centers for Medicare and Medicaid Services requiring that federal employees, the employees of federal contractors, employees of medical organizations receiving federal Medicare and Medicaid funds and employees of employers with 100 or more workers vaccinate against COVID-19 by January 4, 2022.  Employers with 100 or more workers may allow employees to test regularly for COVID-19 rather than vaccinate.
 
Idaho Has Joined Litigation Against the Federal Vaccine Mandates  
Idaho has joined three separate federal lawsuits regarding the Biden Administration’s vaccine and testing mandates.  The federal courts temporarily stayed the mandate that all employers with 100 or more workers require their workers to take the COVID vaccine or regularly test for COVID-19.  Shortly thereafter the Biden Administration suspended enforcement of this mandate. And most recently a court stayed the requirement that applied to healthcare workers.
 
Idaho Does Not Have Vaccine Mandates
Idaho law does not require any adult or child to vaccinate against COVID or any other disease.  Idaho law specifically allows parents to exempt their children from vaccinating for school for any reason the parent deems appropriate.  See Title 39, Chapter 48, Idaho Code.
 
Idaho Does Not Require or Provide Vaccine Passports
The Governor issued Executive Order No. 2021-04 stating that no part of the executive branch of the state government can require proof of vaccination for someone to access state services or facilities.  Nor can the executive branch produce COVID-19 vaccine passports or provide information regarding an individual’s COVID-19 vaccine status to anyone else for inclusion in a COVID-19 vaccine passport.
 
The Idaho Health Freedom Act
This law asserts that the federal government does not have power over the health freedom of Idahoans.  See Idaho Code Section 39-9003(1).  Idaho Code Section 39-9003(2) declares that
 
the public policy of the state of Idaho, consistent with our constitutionally recognized and inalienable rights of liberty, is that every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty by the federal government of the United States of America.
 
It is questionable that this Act is enforceable against the federal government because the United States Constitution says that federal law is the supreme law of the land.
 
Employers Can Condition Continued Employment on Vaccinating and/or Masking
Idaho is an at-will employment state.  This means that employers can condition continued employment on a wide variety factors, including but not limited to vaccinating, providing proof of vaccination and masking.
 
Access to Property Can Be Conditioned on Vaccinating and Masking.
Idaho’s laws on trespass allow those renting or owning property to set the conditions on which others can access their property.  This means that entering someone else’s property can be conditioned on a wide variety of factors, including but not limited to vaccinating, showing proof of vaccination and masking.    
 
State and Federal Civil Rights Laws Offer Certain Protections Against Vaccine Mandates
Two federal laws and an Idaho law together prohibit disability and religious discrimination in several areas, including employment, transportation, public accommodations, communications and access to state and local government' programs and services.  See the Americans with Disabilities Act, beginning at 42 U. S. Code Section 12101; Title VII of the Civil Rights Act of 1964, beginning at 42 U. S. Code Section 2000e; and the Idaho Human Rights Act, beginning at Idaho Code Section 67-5901.  Individuals with certain medical conditions or religious beliefs against taking a vaccine may be entitled to exemptions or other accommodations related to vaccine requirements established by the federal government or their employer.
 
Idaho Law Protects the Free Exercise of Religion
Idaho law states that the “[f]ree exercise of religion is a fundamental right” and that “government shall not substantially burden a person’s exercise of religion . . . .”  See Idaho Code Section            73-402(1) and (2).  See also Idaho Constitution Article IV, Section 1.  This law goes on to state that  
[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is both:
  1. [e]ssential to further a compelling governmental interest; [and]
  2. [t]he least restrictive means of furthering that compelling governmental interest.
In other words, a governmental vaccine mandate to prevent the spread of COVID-19 would only be enforceable against a person objecting to vaccination on religious grounds if
  •  the vaccine actually prevents spread of the disease,
  • preventing spread of the disease is a compelling government interest, and
  • vaccination is the least restrictive way to prevent spread of the disease. 
For example, if masking adequately prevents spread of the disease, the vaccine requirement could not be enforced against the religious objector.  

OUT AND ABOUT 

I hope you have a great holiday season!  Get out there and have fun with family and friends and give thanks for all we have.
Paid a visit to our national forest with a Christmas tree permit and found our holiday tree while having fun on our beautiful public lands!  
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Paid for by Wintrow for Idaho | Treasurer Anne Kunkel
1711 Ridenbaugh, Boise, ID - 83702

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Paid for by Wintrow for Idaho | Treasurer Anne Kunkel
1711 Ridenbaugh, Boise, ID - 83702

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You can update your preferences or unsubscribe from this list.