Nevada’s Non-Vax Tax

December 14, 2021 | Category: BPE Newsletter, COVID-19

Nevada’s Non-Vax Tax

By: Alex “AJ” Hinman, Esq.

December 13, 2021

On December 2, 2021, Nevada’s Public Employees’ Benefits Program Board (“PEBP”) approved a bill that will surcharge certain unvaccinated public workers up to $55 per month. The Board stated that this surcharge (state mandated assessments to provide funding for various insurance and employment related programs) is to offset the cost of testing that is required of unvaccinated workers, as well as the costs of those getting care. It takes effect in July of 2022. Regardless, of one’s position on the vaccine, the important take away from this is Nevada’s decision to impose a financial charge for one’s vaccine decision. This is something that no State or the Federal government has ever done before. The impacts of such a decision will play out over the coming months or year. What is the slippery slope that such a decision may create?

DuAne Young, policy director for Nevada Governor Steve Sisolak, said in a statement “this pandemic has been shouldered on the burden of everyone. And now this particular burden – the testing – should be shouldered on the burden of those who refuse to (be vaccinated).”

It’s not just the public workers who will see the surcharge. All dependents above the age of 18 that are covered on public workers insurance plans will see a surcharge of $175 per month. Therefore, any spouse or adult child that is on the worker’s plan will see this increase if they remain unvaccinated.

Laura Rich, the Executive Officer of the Public Employees Benefits Program, stated in an interview on December 3, 2021, that the measure is not punitive, but that it is just something that has to be paid for, where the alternative would have been to surcharge both vaccinated and unvaccinated employees.

Nevada estimates that roughly 5,000 state workers are currently unvaccinated and it’s clear this policy has been designed to try to reduce that number, through means that have not yet been attempted in any other state. It is also worth mentioning that the new surcharge purportedly does not affect all public employees. Both Gov. Sisolak and Laura Rich have stated that this applies only to those state employees who work with vulnerable populations such as health care workers and those in corrections. The surcharge also applies to the Nevada System of Higher Education (“NSHE”) employees. There will be waivers through religious or medical exemptions; however, these have not been disclosed up to this point.

It is also worth noting, this decision comes at a time when many NSHE employees are already faced with losing their job over their vaccination status. More specifically, it has been reported that 1,258 NSHE employees are facing termination over refusing to get the vaccination after the mandate that the Board of Regents approved in September of 2021. These employees will be terminated on December 31, 2021, if they have not been vaccinated or have not had an approved medical or religious exemption. These employees are able to be reinstated if they get the vaccination in January.

Thus, for many unvaccinated public employees, the surcharge is the least of their worries. Combining this new surcharge and the previous vaccine mandate, it would seem that the surcharge is really going to operate as a method for the PEBP to compel parents and spouses to be the ones that “mandate” their dependents receive the vaccination… or face the $175.00 per month increase per dependent.

While the Nevada surcharge presents a new batch of possible legal contentions, this comes a month after the United States Court of Appeals for the Fifth Circuit, ordered a stay in BST Holdings, L.LC., et al. v. Occupational Safety and Health Administration, et al., (Case No. 21-60845). In the BST Holdings, which dealt with the vaccine mandate on private companies with more than 100 workers, the Court ordered that OSHA must cease taking steps to implement or enforce the mandate until further court order. As the Court noted, OSHA’s use of an emergency temporary standard (“ETS”) was quite unusual, though not unheard of. In fact, in its fifty-year history, OSHA has issued just ten ETS’s. Six of them were challenged in court; only one of which survived. The reason for the rarity is that OSHA has extraordinary power under the ETS and as a result, “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” (Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., (1974) 489 F.2d 120, 129-30.)

With regard to Nevada’s mandate, it will likely be a harder battle in court, and that is per design. OSHA’s overreaching in applying 29 USC § 655(c)(1) is an easier argument to make than governmental insurance programs not having the right to offset costs incurred as a purported result of the unvaccinated. This does not mean it is free from challenges though, as the mandate comes from a state agency and it presents possible Equal Protection issues under the Fourteenth Amendment. While Nevada is the first state to attempt to achieve increased vaccinations through an insurance surcharge, it is unlikely it will be the last.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.

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