Bill Description: House Bill 426 protects individuals from discrimination based on immunization status and provides a number of exceptions. It also creates a "sovereign legal defense fund."

Rating: +1

Analyst Note: H426 is one of several pieces of legislation introduced during the November meeting of the 2021 session to address the issue of vaccine mandates in Idaho. H426 includes the same provisions as H412 plus additional provisions. H426 is very similar to H425. 

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

H426 adds definitions to Section 67-5902, Idaho Code, and creates Section 67-5909B, Idaho Code, to prohibit discrimination based on immunization status or possession of an immunity passport. It also provides a number of exceptions where these prohibitions do not apply. 

The new section says, "It is an unlawful discriminatory practice" to refuse service to someone, deny them employment, or exclude them from a public accommodation based on the person's immunization status or possession of an immunity passport.

Various exceptions are provided for schools, day care facilities, licensed nursing homes, long-term care facilities, and assisted living facilities. 

Of particular concern, the exceptions for licensed nursing homes, long-term care facilities, and assisted living facilities are predicated on compliance resulting in "a violation of the regulations or guidance issued by the centers for Medicare and Medicaid services." Deference to the federal government's preferences should not be enshrined in Idaho law. 

Additionally troubling, healthcare facilities are allowed to ask an employee "to volunteer the person's immunization status for the purpose of determining whether the health care facility should implement reasonable accommodation measures to protect the safety and health of employees, contractors, patients, visitors, and other persons from communicable diseases."

This language violates the privacy and personal medical information of individuals by allowing employers to seek what should be exclusively private information. Additionally, it implicitly endorses the idea that someone choosing to be unvaccinated could compromise the "safety and health" of others, an unproven assertion. 

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An additional subsection of the bill says, "An individual may not be required to receive an inoculation by any vaccine whose use is allowed only under an emergency use authorization or any vaccine undergoing safety trials." This should be standard practice, but recent events have revealed this common sense measure needs to be explicitly stated in Idaho law.

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H426 creates Section 67-451B, Idaho Code, which establishes a "sovereign legal defense fund." The legislation would empower the President Pro Tempore of the Senate and the Speaker of the House of Representatives "to make expenditures out of the fund for any necessary legal expenses of the legislature in defending the state of Idaho against any incursion by the federal government." 

While the stated purpose of the fund — defending the state of Idaho against any incursion by the federal government — is certainly within the proper role of government, the creation and funding of this new fund may be redundant given the existence of Idaho's constitutional defense fund. 

It is worth noting, however, that the constitutional defense fund is overseen by the "constitutional defense council," which includes the governor and the attorney general in addition to the president pro tempore of the Senate and the Speaker of the House of Representatives. A decision requires a majority vote of the four members, which means the legislature is effectively prevented from taking legal action without the consent of at least one of the council's executive branch members. The "sovereign legal defense fund" would not have this same impediment to independent legislative action. 

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