Bills would exempt businesses from customers’ COVID-19 violations, protect ‘right of conscience’

Bills meant to exempt businesses from being penalized for their customers’ behavior during the COVID-19 pandemic and to protect medical providers’ “right of conscience” advanced through the Senate Public Health, Welfare and Labor Committee Monday (Feb. 8).

Both were sponsored by Sen. Kim Hammer, R-Benton.

Under Senate Bill 254, firms, persons and corporations would not be liable to Department of Health penalties during the COVID-19 pandemic public health emergency if a violation occurs through the actions of a patron or customer. The bill passed on a voice vote with no audible dissenters.

Hammer explained in his presentation that if the Health Department or other agencies enter a business and witness a violation, the agency must confront the patron directly rather than penalize the business.

“We want them to deal with the individual and not expect the business, which still has to enforce all the directives upon their employees, but in the environment that we’re living in today, I do think the small businesses are put at a disadvantage, that they’re expected to either run their customers off or be put in that awkward position,” he said.

The bill has eight co-sponsors in the Senate and 34 co-sponsors in the House.

Matt Gilmore, the Health Department’s public health programs policy coordinator, said the department relies on business owners to help it enforce its regulations, and the bill could hamper some of its efforts. He said it could imply fault in past actions, potentially opening up the state to litigation.

Laura Shue, general counsel for the Department of Health, said the department educates businesses several times before penalties are issued.

Gilmore said the department specifically had penalized five retail food establishments during the pandemic after they had refused to comply with directives. Alcoholic Beverage Control had also engaged in some enforcement efforts. He said 67 cosmetology establishments out of 4,300 licensed salons had been penalized after at least one attempt to educate them. No other businesses had been penalized, he said.

Sen. Dan Sullivan, R-Jonesboro, said small businesses are being targeted by the department while big box stores are not. The Bureau of Legislative Research reports that business fines have totaled around $60,000 by state agencies.

Gilmore said the Health Department does get complaints on Walmart and he has personally been involved in conversations with the retailer, but it can be harder to find the noncompliant employee in huge corporations.

Hammer closed by saying the bill does not interfere with businesses’ ability to expect customers to comply with Department of Health regulations.

The committee also advanced with no audible objections Senate Bill 289, the “Medical Ethics and Diversity Act.” The bill states that its purpose is to protect medical practitioners, healthcare institutions, and healthcare payers from discrimination, punishment, or retaliation because of a conscientious medical objection.

Those entities would have the right not to participate in services that violate their conscience. Religious entities would have the right to make decisions consistent with their beliefs regarding employment, contracting and admitting privileges.

Among a list of actions that would be barred would be termination, refusal of staff privileges, refusal to award a grant, and denial of licensure.

Healthcare payers would be required to file their conscience policies annually with the State Insurance Department.

The bill does not include the right to deny emergency care. Also, medical judgment would not be covered, so a nurse could not tell a doctor she does not believe in providing antibiotics, said Stephanie Nichols, an Alliance Defending Freedom legal counsel who presented the bill.

Nichols said Illinois and Mississippi have similar laws which have produced few cases. While employers have a duty to accommodate, one case found an employee could not use a conscience law to avoid core responsibilities. A nurse cannot get a job at Planned Parenthood and then say they have an objection to an abortion, she said.

Nichols predicted that President Biden’s administration will require Medicaid to fund gender transition procedures on children, increasing the pressure on providers to offer them. She said Biden’s Department of Health and Human Services won’t pursue conscience claims like President Trump’s did.

“We are on the brink of threats to medical conscience in a way that we have never seen before,” she said.

She said when she recently made pediatric appointments in Jonesboro, the office asked if her eight-year-old son identified as male and if her 10-year-old daughter identified as female. She said religious medical providers and students are facing discrimination based on their beliefs, reducing pro-life women’s access to their services.

The bill has 12 cosponsors in the Senate and 17 co-sponsors in the House.

Hammer indicated a willingness to amend the bill to exempt the Arkansas Department of Health when the bill goes to the House of Representatives. He made that statement after Gilmore indicated the department might have difficulty keeping one-nurse health units covered.