OKLAHOMA CITY — Employers could be liable for $1 million in punitive damages if they require their workers to be vaccinated as a condition of employment and subsequently an employee experiences an illness or injury that can be blamed on the shot.
Senate Bill 1106, the “Citizen Health Mandate Protection Act” by Sen. Rob Standridge, R-Norman, was filed for consideration when the Oklahoma Legislature reconvenes next February.
An “employer” is defined in the bill as any person or entity that has one or more employees, including all private-sector and state public-sector employers.
An employee would be entitled to sue his/her employer for actual and punitive damages if the worker experienced any injury or illness that could be attributed to the vaccination or “medicinal treatment program” mandated by the employer.
The minimum award for punitive damages would be $1 million, the bill stipulates.
“Many Oklahomans may not know that COVID-19 vaccines have already been given liability protection from the federal government,” Standridge said. “If an employee is required to receive a vaccine or some other medical treatment as a condition of employment and it causes that person harm, our citizens need to know they’ll have some recourse that will provide them with meaningful relief.”
If the employer “knowingly required the vaccination or treatment without confirming its safety based on publicly available medical testing and documentation,” the employer would automatically be subject to at least $1 million in punitive damages, SB 1106 provides.
An employer subject to a claim made under the provision of the Citizen Health Mandate Protection Act would not have the limitations of liability or immunity provided by the Governmental Tort Claims Act or the Public Readiness and Emergency Preparedness Act, the bill decrees.
Insurance agent Jeff Tebow said a $1 million punitive damage award probably would have to come out of an employer’s own pocket. “No business insurance policy, such as directors and officers liability insurance or even a general liability policy, will pay for punitive damages,” said Tebow, managing member of Andreini & Co. Insurance Brokerage in Oklahoma City. “A million-dollar punitive damage award is not insurable; it’s against public policy in this state.”
The Southwest Ledger left messages for Standridge with his State Capitol legislative assistant and on his personal cellphone, but he never responded. The Oklahoma Medical Association also failed to respond to messages the Ledger left with two of their officials
The Ledger wanted to ask Standridge how he settled on $1 million rather than, say, $100,000?
The Ledger also wondered whether an employer could be penalized $1 million or more if a vaccination, such as that for COVID-19, caused nothing more than a sore arm or a short-term headache? SB 1106 contains no specifics on severity of illness or injury.
In addition, the bill contains no statute of limitations. How would an injury or illness be traced to a mandatory vaccination or medical treatment, and could the employer still be held liable for punitive damages, if an employee experienced an illness or injury several weeks, months or even years afterward?
CCMH and Tulsa healthcare provider mandate vaccination
Comanche County Memorial Hospital in Lawton is among the employers who have issued COVID-19 vaccination mandates to their employees. CCMH workers must be fully vaccinated by no later than Jan. 4, according to an email from Chief Executive Officer Brent Smith.
Staffers can apply for a medical or religious waiver, but those who don’t must get the first Moderna or Pfizer shot by Dec. 5, Smith specified in the email. Those who prefer the Johnson & Johnson single-dose vaccination must receive it by Dec. 5.
Smith wrote in his email that the mandate was issued directly from the Centers for Medicare and Medicaid Services.
Ascension Healthcare in Tulsa announced on Nov. 12 that it planned to suspend the employment of all of its Oklahoma healthcare workers who claimed a religious exemption from COVID-19 vaccination, and intends to fire them on Jan. 4 unless they submit to being fully vaccinated to save their jobs.
Oklahoma Attorney General John O’Connor sought, and received, a temporary restraining order against Ascension Healthcare in Tulsa County District Court. However, Ascension promptly filed a motion to have the case removed to Tulsa’s Northern District Federal District Court.
O’Connor has asked the federal court to impose a restraining order in the case; none had been issued as of Nov 20.
Meanwhile, Ascension asserts that the state’s claims are pre-empted by the Interim Final Rule of the Centers for Medicare and Medicaid Services – which is the justification cited by Comanche County Memorial Hospital for its vaccination mandate.
Lawton, Altus, Elgin, Hillcom, Comanche Co. don’t
The City of Lawton does not have a COVID-19 vaccination mandate for its employees, said Kaley Patterson Dorsey, the city’s communications and marketing manager. The City of Altus and the City of Elgin don’t, either.
The Comanche County Board of Commissioners has no vaccination mandate for the county’s approximately 275 employees, Public Information Officer Amy Hawkins said. Previously, for several months, the commissioners did impose a mask mandate and temperature checks for anyone entering the county courthouse in downtown Lawton, but that order was lifted on Oct. 22.
Some employers, such as Hilliary Communications, don’t require their employees to get vaccinated for COVID-19 but do offer them incentives to get the shots.
All Army personnel must be vaccinated, Pentagon decrees
Brig. Gen. Thomas Mancino, commanding general of Oklahoma's National Guard, said he was following orders from Republican Gov. Kevin Stitt when he issued a memo on Nov. 11 exempting the state’s National Guard troops from a Defense Department COVID-19 vaccine mandate.
Secretary of the Army Christine E. Wormuth issued an order that all soldiers, including Guardsmen, who refuse vaccines without exemptions will be barred from promotion and re-enlistment. The Pentagon began requiring the vaccine in September to protect its troops.
The Pentagon has not responded to a letter from Stitt asking that Sooner State troops be exempt from the vaccine mandate. But Pentagon Press Secretary John Kirby reiterated to reporters last week that Secretary of Defense Lloyd Austin has the authority to set mission requirements for all troops, including the National Guard.
“All service members in the active and reserve components, including members of the National Guard, must meet medical readiness requirements established by the secretary of defense," Kirby told reporters. “Continued service and participation by all service members requires that they meet such medical readiness requirements.”
The state’s National Guard reports to the governor, who acts as its commander-in-chief. But the federal government provides the bulk of its funding, which could force President Biden to defund the Oklahoma National Guard — which contributed to the defense of the U.S. Capitol after the Jan. 6 insurrection — until it is in compliance.
Dwight Stirling, a military law expert who is a former military attorney and a founder of the Center for Law and Military Policy, estimated that the federal government provides the Oklahoma National Guard with up to 90% of its resources.
Oklahoma tribes stress vaccination
All Comanche Nation employees are required to be completely vaccinated against COVID-19 by Jan. 4, unless an employee has a valid medical reason preventing vaccination or a bona fide religious objection to vaccination; however, those tribal employees will be required to submit to weekly COVID-19 testing.
Earlier this month the Comanche Business Committee voted to repeal a resolution adopted on Sept. 4 that declared a state of emergency and imposed a mask mandate for the Nation to combat the onset of the COVID-19 Delta Variant.
In addition, the Comanche Nation Tribal Campus has reopened to the public with the following safety precautions: All visitors must submit to a temperature check and present proof of complete vaccination. Unvaccinated visitors will receive curbside service only.
The Cheyenne and Arapaho Tribes required their employees to become vaccinated against COVID-19 in August or be placed on indefinite leave.
The longtime chairman of the Citizen Potawatomi Nation issued a letter to the tribe’s 587 employees on Nov. 16, requiring them to be vaccinated “without exception”. Having unvaccinated employees is “a hazard to the tribe and the public,” Chairman John “Rocky” Barrett wrote.
The Cherokee Nation, the state’s largest Native American tribe, adopted a tribal government employee vaccination requirement in May that authorizes some exceptions.
The Muscogee (Creek) Nation will give $300 to every tribal member who gets fully vaccinated for COVID-19 by Dec. 31.
Chickasaw Gov. Bill Anoatubby said in September that 78% of his tribe’s employees, and 88% of tribal health care workers, were fully vaccinated.