President Biden’s “Path Out of The Pandemic” is on a collision course with Iowa law

On September 9th, President Biden announced his six-part plan for addressing the persistent but not surprising number of delta variant COVID-19 cases occurring as part of the second wave of the pandemic. The plan includes a number a federal mandates aimed at ensuring that Americans are vaccinated or tested on a regular basis. The plan includes the following elements:

• Employers with 100 or more employees must require vaccination or weekly testing and provide paid time off for employees to get vaccinated.
• Most federal employees are required to get vaccinated.
• Most federal contractors will be required to vaccinate their workforce.
• In October the Center for Medicare and Medicaid Services will issue rules requiring virtually all healthcare providers to mandate employee vaccinations.
• Most schools are encouraged to implement vaccination protocols

The specifics of the plan can be found at https://www.whitehouse.gov/covidplan.

Many of the provisions of this plan to be implemented by federal agencies like the Occupational Safety and Health Administration and the Center for Medicare and Medicaid Services, could conflict with Iowa House File 889, Iowa’s vaccine passport law. HF889 prohibits non-medical entities open to the public from denying entrance or admittance based on vaccination status. While the legislative history has been interpreted to mean this statute does not apply to employers who want to mandate that their own employees get vaccinated, a strict reading of the statute, that Iowa employers cannot mandate vaccines, would certainly conflict with the proposed federal mandate.

The federal mandates also create a potential problem under the Iowa Immunity Law, Iowa Code Chapter 686D, which requires Iowa businesses to follow applicable regulations to take advantage of a “safe harbor.” (Iowa Code § 686D.5.) The safe harbor requires compliance with “federal or state” laws and regulations. When federal law dictates mandatory vaccinations and state law arguably prohibits it, Iowa businesses will be in a quandary trying to determine how they can “comply” with the appropriate law to take advantage of the liability safe harbor.

It remains to be seen how these problems will be resolved.