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For Nashua, Legality of Public Employer Vaccine Requirement Remains A Question

A COVID-19 vaccine in a vile
Todd Bookman
/
NHPR
The ambiguity of a new law passed this summer is affecting the city of Nashua’s policy-making around vaccine mandates.

Local governments could still require public employees to get vaccinated for COVID-19, according to the New Hampshire Municipal Association (NHMA), even in the context of a recent law prohibiting a mandated COVID-19 vaccine to access public spaces, services, and benefits in the state.

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While the law clearly states it does not apply to medical institutions like county nursing homes or the state hospital, for city and town employees, it's less clear.

NHMA, which provides legal advice to cities and towns, finds the law does not apply to public employees for a few reasons. Among other points, NHMA notes “language in the original bill that explicitly prohibited public employers from mandating vaccines had been removed before final passage of the legislation.”

At the same time, NHMA says the legislative record of the law, including the hearings on the legislation, does leave room for doubt and advises cities and towns considering a mandate to seek further legal counsel.

The room for doubt is affecting the city of Nashua’s policy-making around vaccine mandates. “If it were clearly legal, we would be considering [it] very seriously right now,” Mayor Jim Donchess says.

Donchess says a vaccine mandate would protect city employees and Nashua residents from the threats COVID-19 poses. He says weekly calls with the local hospital provide grim reminders of the virus’s toll on the unvaccinated, whom he says represent the vast majority of COVID-19 related hospitalizations.

Without a clear legal framework, Donchess says requiring vaccines for public employees poses a considerable risk for the city.

Donchess says he wrote to the Attorney General's Office asking for their interpretation of the law in the hopes of getting more clarity. NHPR reached out to the Attorney General Monday, but as of the time of publication, the Attorney General’s office has not provided an interpretation of how the law applies to public employees.

Elizabeth Dragon, the City Manager of Keene, says she thinks a mandate for public employees is probably legal.

But Dragon says NHMA’s guidance “left a bit of a gray area for those that might be considering it.”

Unlike Donchess, Dragon isn’t considering implementing a vaccine mandate. Dragon says public employees in Keene already have vaccination rates higher than the state average.

Rochester, Dover and Manchester also do not currently have plans for an employee vaccination mandate.

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