Many misconceptions have been circulating among the health freedom community regarding the Roy Amendment to SB155. This is confusing many New Hampshire citizens and vaccine choice activists, in particular, and the information below is to set the record straight.
Addressing each misconception one by one
Claim 1. There is no bill proposing vaccine passports and Governor Sununu has made it clear that he would oppose government-required vaccine passports.
Response:This is not an argument against a preemptive strike against vaccine passports or requirements to prove immunity. The governor has flipped on many issues throughout the pandemic, sometimes within days. This bill is playing offense against COVID fascism, not defense.
Claim 2. This bill would NOT prohibit vaccine passports. It would only prohibit the government from doing so. Businesses would still be able to require vaccine passports for employees and customers.
Section V (b) (highlighted) in the attached amendment attempts to codify into state statute, existing federal law. Except that instead of simply adding federal law to state law (which isn’t necessary in the first place) they have amended the good protections under federal law to allow employers of healthcare workers and first responders to require disclosure of vaccination status and to require vaccination (of any and all vaccines). Never before have NH legislators created a pathway for adults to face mandatory vaccination…but here it is in this amendment.
Response: This bill bans businesses from requiring customers from providing proof of vaccination or proof of immunity.
On page 5, line 30, the bill as amended states: “It shall be an unlawful discriminatory practice for any person or government entity to deny an individual access to goods, services, employment, housing, education, or places of public accommodation based on an individual’s vaccination status or immunity status.” This language is directly inserted into RSA 354-A:17, “Unlawful Discriminatory Practices in Public Accommodations.” It absolutely applies to businesses or anything that is open to the public as it is defined in RSA 354-A as follows:
XIV. “Place of public accommodation” includes any inn, tavern or hotel, whether conducted for entertainment, the housing or lodging of transient guests, or for the benefit, use or accommodations of those seeking health, recreation or rest, any restaurant, eating house, public conveyance on land or water, bathhouse, barbershop, theater, golf course, sports arena, health care provider, and music or other public hall, store or other establishment which caters or offers its services or facilities or goods to the general public. “Public accommodation” shall not include any institution or club which is in its nature distinctly private.
It prevents employers from requiring proof of immunity or vaccination, with the exception of employers that are medical providers. This exception to the ban on employers requiring proof of vaccination or immunity status is extremely limited. Please read carefully the part that is highlighted in the bill as amended which you attached, beginning on page 6, line 20, and finishing on page 7, line 12.
It provides that medical providers may require proof of immunity only where a direct threat exists that cannot be eliminated or reduced by reasonable accommodation, and uses the parameters for defining a direct threat from a federal code that currently applies to all employers nationally, 29 CFR 1630.2(r). In court cases citing this federal code, the bar was very high to prove that a direct threat existed that could not be mitigated by reasonable accommodation. To my knowledge, not being vaccinated has never been found to be a direct threat that could not be mitigated. This is in no way a new mandate for adults.
In the same section, the amended bill goes further and states that even in the event that a direct threat is determined to exist, vaccination or proof of immunity cannot be required of employees when there is a medical or religious reason they cannot be vaccinated, and it also provides that employers must accept proof of immunity in lieu of vaccination in the form of either a lab test showing immunity or a physician verifying in writing that the person had the disease for which vaccination is required and is therefore immune.
This is a huge leap in the protection of employees in our state from vaccine mandates. With this amendment, the only people who could legally required to be vaccinated for employment are medical providers who have not only been determined to present a direct threat that cannot be eliminated or reduced by reasonable accommodation (again, an extremely high bar which to my knowledge has never applied to vaccination status), but who also cannot provide proof of immunity, or claim a medical or religious contraindication. This is an extremely narrow exception to an otherwise total ban on employee-mandated proof of vaccination or immunity. Without an exception for medical professionals, the chance of the amendment passing would not be great. I would prefer no exceptions, but we cannot let perfect be the enemy of good. This is still an amazing win for bodily autonomy.
Claim 3. This bill would prohibit vaccine passports for colleges only for those students who have asserted a medical or religious exemption. Vaccine passports could be required of all others.
Response: We currently have no protection against vaccination requirements for college students. There is nothing in the current statute prohibiting colleges from requiring vaccinations for students. What this amendment does is extends the k-12 school religious and medical exemptions to college students. It does not require that all others must be vaccinated, that policy is still up to the college/university. Again, I would have liked to prohibit requiring proof of immunity/vaccination entirely, but this is another area where we need to take a small bite rather than a big one if we want this to pass.
Claim 4: Section 10 seeks to amend the communicable disease statute RSA 141-C:20-a to include varicella as a required vaccine in state statute. This is very troubling that those who support this amendment would seek to add more vaccine requirements for children into state law.
Response: This section does not change any requirements for school vaccinations. There is already a requirement for varicella vaccination for schools, but it was created through administrative rules. Since in this section of the amended bill, on page 7 lines 14-20, the amendment strikes the DHHS’s authority to make administrative rules regarding vaccines not listed in the statute, we updated the statute to reflect the current requirements. In other words, the bill as amended takes away the commissioner of DHHS’ authority to add new vaccines to the school schedule by administrative rule-making and instead if any new vaccines are to be added to the school schedule, a bill would need to come before the whole legislature, be voted on by both chambers, and be signed by the governor.
I hope this puts these misconceptions to rest.
