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Why Gov. Tim Walz couldn’t impose a vaccine mandate for Minnesota — even if he still had emergency powers

At issue is a section of state law that came out of a revision of emergency powers laws following the 9/11 terror attacks.

Gov. Tim Walz said Tuesday he has no legal authority to impose vaccine mandates, citing a reading of state law by his general counsel, Karl Procaccini.
Gov. Tim Walz said Tuesday he has no legal authority to impose vaccine mandates, citing a reading of state law by his general counsel.
MinnPost photo by Peter Callaghan

Among the requests Gov. Tim Walz made of legislative leaders Tuesday was to have them pass a requirement that school staff and eligible students get vaccinated against COVID-19. 

That request — part of a long list of issues Walz now wants lawmakers to take up [PDF] during a potential special session — was made with the strong suggestion that legislators who complained about him governing alone during much of the pandemic should step up and act now that he no longer has emergency powers.

“They said there’s no reason for the governor to use executive orders,” Walz said of GOP leaders. “I said that’s fine. I trust them at their word. So I sent them a list of things they can do.” 

Walz declared a state of emergency in March 2020 and extended it monthly until July 2021, when the emergency was rescinded under a bipartisan agreement.

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The governor could declare a new emergency that could last up to 30 days before the House and Senate could try to remove it. But even under that scenario, could Walz act on his own if lawmakers — especially those in the GOP-controlled state Senate — refuse to impose a vaccine mandate or masking requirement in school? 

On masking, perhaps. On vaccines: No.

While some of the other requests made Tuesday could be imposed under a state of emergency, Walz said Tuesday he has no legal authority to impose vaccine mandates, citing a reading of state law by his general counsel, Karl Procaccini. It came during a St. Paul event promoting flu shots in which Walz and Health Commissioner Jan Malcolm received shots against seasonal flu.

At issue is a section of state law, Minnesota 12.39, titled “Refusal of Treatment” that came out of a revision of emergency powers laws following the 9/11 terror attacks. Even during a peacetime state of emergency, “individuals have a fundamental right to refuse medical treatment, testing, physical or mental examination, vaccination, participation in experimental procedures and protocols, collection of specimens, and preventative treatment programs.”

The law says the state health commissioner can order isolation or quarantine for someone believed to be infected with a communicable disease if they refuse treatment. The infected person cannot, however, be ordered to receive a vaccine.

Teddy Tschann, Walz’s deputy chief of staff for communications, said the statute has been  in place since 2005. “It’s way before us and way before COVID,” Tschann said of the statute’s origins. “The governor’s office has read this statute and said it is likely that it would not allow the governor to mandate vaccines for schools.” The law doesn’t address private employers requiring vaccines for workers, and several bills were introduced during the 2021 session that would ban private vaccine mandates.

Walz Tuesday said even if he had legal authority to impose mandates, however, he would consider whether such an action would be accepted by residents. “The consideration of what to do was based on the best health advice and what was possible — what was legally able to be done, what was the best health advice and what was getting social buy-in for what to do,” Walz said.

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Walz’s staff does think the governor, in the context of an employer, has the authority to require the state workers to either be vaccinated or receive frequent COVID testing in order to work in person. Most readings of state and federal law say employers can require vaccines or testing.

State Sen. Jim Abeler
State Sen. Jim Abeler
Sen. Jim Abeler, the chair of the Senate Human Service Reform Finance and Policy committee, will hold a hearing Wednesday that will include questions about the vaccine requirement for state employees. 

Abeler said he is not clear why Walz is banned from imposing mandates on the general population but can do so with state workers. “Perhaps their legal angle is that certainly a person can refuse and not be required to get the vaccine or test. However, it does not say he cannot fire them since he is their boss,” the Anoka Republican said. The largest state employees union, AFSCME Council 5, opposes the Walz mandate for state workers.  

Walz predicted that Senate Republicans would not act on his requests regarding school vaccines and masking requirements. “It has become a litmus test on purity apparently for our Republican legislators,” Walz said. “It is the best course of action but I don’t think they will do it.” 

The governor did say he hopes lawmakers will take action on the other COVID-related requests he laid out Tuesday, including new rules for hospital and nursing homes.

The initial reception from Senate GOP leadership was negative, with leaders repeating that any special session should be limited to passing a plan to give out $250 million in bonuses to essential workers who faced exposure to COVID-19 during the pandemic. 

Senate Majority Leader Jeremy Miller
Senate Majority Leader Jeremy Miller
“I appreciate the meeting with Gov. Walz and legislative leaders this afternoon, and I’m confident we can reach an agreement on the bonus pay for frontline workers,” said Senate Majority Leader Jeremy Miller, R-Winona. “The growing list of requests from Gov. Walz is not productive towards ensuring these dedicated workers receive their bonus pay in a timely manner. They took the biggest risk and kept us safe during the pandemic, and they deserve meaningful bonus checks.”

House Speaker Melissa Hortman, DFL-Brooklyn Park, was more open to acting on the pandemic-related requests. “The Minnesota House DFL stands ready to deliver pay for frontline workers, provide drought relief, and assist our state’s health care providers with the challenges they’re experiencing due to the Delta wave,” she said. “The simple question for Republicans is whether they’re willing to set aside partisan politics for a concise special session that takes care of these matters.”