Fayetteville looks at testing requirement

City is the only major jurisdiction in state’s NW region to consider such a policy

Cities and counties in Arkansas can disregard President Joe Biden’s order for employers with at least 100 employees to require weekly covid-19 testing or proof of vaccination, according to a White House spokesman.

Out of the five major cities and three counties in Northwest Arkansas, only Fayetteville is considering such a policy.

The city began discussing the policy before Biden made his announcement. Fayetteville’s City Council on Sept. 7 passed a resolution asking Mayor Lioneld Jordan to explore a policy requiring employees to get a weekly covid-19 test or voluntarily provide proof of vaccination to opt out.

Biden announced the same directive two days later for private businesses and health care facilities that receive federal money. Federal workers also will be required to get the shot, without the testing option.

Jordan told the city’s Board of Health on Wednesday that Biden’s announcement sent him in a bit of a tailspin to figure out where it applied to cities. City Attorney Kit Williams said it likely does not, because Arkansas is under federal Occupational Safety and Health Administration jurisdiction that covers only private sector employment.

A White House official Thursday confirmed the order will bind private sector employers in Arkansas, but not state and local governments. Those entities are encouraged to put those requirements in place.

Jordan has continued developing the city’s policy, including a proposed contract for a vendor to do contact tracing and creating a fund for employees to draw compensation from if they get a positive test result and must quarantine.

The city’s public health officer also is pursuing a pooled testing option in which six employees would provide saliva samples at a time. If a batch came back with a positive result, each of the six employees would get tested individually to find the positive case.

Washington County Judge Joseph Wood on Sept. 10 announced he wouldn’t require county employees to get weekly tests or provide vaccination cards. Wood encouraged employees to consult a doctor or health officials about vaccination.

Benton County Judge Barry Moehring similarly said he had no plans for a testing or vaccination requirement. He strongly encouraged employees who felt comfortable enough to get vaccinated and those with questions to consult doctors.

Sebastian County Judge David Hudson on Thursday likened the requirement to a vaccine mandate, which the state forbids, he said. If the state’s stance changed, it would have bearing on the county’s policies, he said. He encouraged county employees to get vaccinated.

Arkansas has two laws prohibiting municipalities from requiring vaccination for employees or requiring proof of vaccination. Fayetteville has argued it would require testing, not vaccination, and providing proof of vaccination would be a voluntary way for employees to opt out of the testing.

The federal regulation will likely end up in court, said Mark Killenbeck, law professor at the University of Arkansas. The outcome of court proceedings will depend on how the administration rolls out the regulations, and whether it follows federal laws when implementing them, he said.

Arkansas Attorney General Leslie Rutledge said Tuesday that she plans to block the rule for cities in the state.

Administrators in Springdale, Rogers, Bentonville and Fort Smith said this week they have no plans to enact the policy.

Fort Smith City Administrator Garl Geffken disagreed with Fayetteville’s assessment that the policy doesn’t violate state law. He cited Act 977 of this year specifically, which prohibits cities from mandating vaccination.

“This act makes clear that local officials cannot discriminate against, or coerce in any way, an individual who refuses to receive the covid vaccine,” Geffken said. “The city of Fort Smith will not violate state law.”

Springdale Mayor Doug Sprouse said the city will encourage its employees to get vaccinated, but he will not propose or support a requirement. He said it was encouraging to see a growing number of residents deciding to get vaccinated.

“I believe that, at this point, drawing a line in the sand and making a vaccination or weekly testing a condition of employment is not only counter-productive, but practically unworkable for our city employees,” Sprouse said.

Rogers Mayor Greg Hines has not decided on requiring weekly testing or proof of vaccination for city employees, a city spokesman said Friday.

Bentonville Mayor Stephanie Orman said the city is not mandating testing or vaccinations for employees. The city’s legal staff will continue to monitor any information that could affect the policy, she said.

Arkansas has two laws prohibiting municipalities from requiring vaccination for employees or requiring proof of vaccination.