Can an Arkansas state agency contract with a private business that requires a COVID-19 vaccine or face mask to receive its services?
Plain-English summary
Arkansas has two statutes that restrict the state from imposing health-related mandates on its own residents. A.C.A. § 20-7-146(c) (added by Act 4 of the 2023 First Extraordinary Session) prohibits the state from making a COVID-19 vaccine or booster a condition of education, employment, entry, or services. A.C.A. § 20-7-144(c) does the same for face masks, face shields, or face coverings.
Senator Bryant asked whether those restrictions reach private businesses that contract with the state to provide public-facing services like education or employment programs. The AG's answer: not by their plain text. Both statutes regulate what the state agency can require, not what a private contractor can require. So if a state-contracted private business decides on its own to require COVID vaccines or face masks of customers, the state has not violated the law just by partnering with that business.
The catch is the de facto mandate. If the state agency had a real choice between two equivalent private contractors, one with a vaccine or mask requirement and one without, and the agency picked the requiring one, a court could find the agency used the contractor as a workaround to impose what the statute forbids. Both statutes leave that door open. The face-mask statute also expressly carves private businesses out of its restrictions in subsection (e)(1), and the COVID statute likely does not reach school districts and other political subdivisions at all because subsection (c) refers only to "state agency or entity," not to political subdivisions.
What this means for you
State agencies and entities
Before signing a contract with a private business that imposes a COVID vaccine or mask requirement on the people who use the services, document why the contractor was selected. The de facto-mandate trap closes when the state cannot show a non-pretextual basis for the choice. If two contractors are substantially equivalent and one requires a mask or vaccine while the other does not, the safer move is to pick the one without the requirement, or to document concretely why the requiring contractor was the better fit on grounds unrelated to the requirement.
If the contracted services are delivered by school districts or other political subdivisions, A.C.A. § 20-7-146(c) likely does not apply at all because subsection (c) is silent on political subdivisions. The mask statute, A.C.A. § 20-7-144, does reach political subdivisions in subsection (b) and (c), so school district contracting is constrained for masks but probably not for vaccines.
School districts and local school boards
You cannot mandate vaccines or masks for students or staff yourself, but partnering with a private business that imposes those requirements is generally permissible. The de facto-mandate analysis still applies: do not pick a contractor with a mask requirement over an equivalent one without if the requirement is the deciding factor. The face-mask statute carves private businesses out, so the partnership itself is not a violation.
Private businesses contracting with the state
You retain your right to set your own vaccine and mask policies for the people you serve. The law restricts what the state can require, not what you can require. If a state agency is contracting with you and asks you to drop your COVID or mask policy as a condition of the contract, that ask is a request, not a legal command. Your private-business autonomy is preserved by A.C.A. § 20-7-144(e)(1) for masks and by the silence of A.C.A. § 20-7-146(c) on private businesses.
Citizens and parents in Arkansas
Even though Arkansas has banned state-level COVID vaccine and mask mandates, you can still encounter a private contractor (a clinic operating a state health program, a private after-school provider, a contracted training vendor) that has its own vaccine or mask rule. That is generally lawful under Arkansas law. If you believe the state agency is funneling business to a requiring contractor specifically because of the requirement, you have a colorable claim under § 20-7-146 or § 20-7-144 for a de facto mandate. Talk to an attorney before filing; the de facto theory is fact intensive.
Common questions
Did Act 4 of 2023 outlaw all COVID-19 vaccine requirements in Arkansas?
No. Act 4 (A.C.A. § 20-7-146(c)) bars state agencies and entities from making a COVID vaccine a condition of education, employment, entry, or services they provide. It does not reach private businesses, even ones in contractual partnerships with the state. Subsection (c) does not apply to political subdivisions like school districts either.
Can a private business decline to accept customers who refuse a COVID vaccine?
Yes. A.C.A. § 20-7-146(c) does not regulate private businesses. Federal law and other state laws may impose limits in specific contexts (employment discrimination, ADA accommodations, etc.), but the COVID-vaccine ban itself does not.
My state agency just picked a contractor with a vaccine mandate over one without. Is that legal?
It depends. If the two contractors were substantially equivalent and the only meaningful difference was the vaccine requirement, that picking pattern is the textbook example of de facto mandate the AG flagged. Document the basis for your choice. If you have a non-pretextual reason (price, capacity, qualifications, contract terms unrelated to the requirement), you are likely fine. If the vaccine requirement was the differentiator, expect a court to look hard at the choice.
Are masks treated the same as vaccines under Arkansas law?
Mostly. Both statutes prohibit state-level mandates and both leave room for private business contractors to impose their own requirements. Two differences matter. First, the mask statute, A.C.A. § 20-7-144(b), expressly applies to political subdivisions of the state and to state and local officials, while the COVID statute, § 20-7-146(c), is silent on political subdivisions. Second, the mask statute carves private businesses out explicitly in subsection (e)(1), making the private-business safe harbor textually clearer for masks than for vaccines.
What about school districts? Are they covered by the COVID vaccine ban?
Probably not. The AG's reading is that A.C.A. § 20-7-146(c) reaches "state agency or entity" but is silent on political subdivisions, and Arkansas Supreme Court precedent (Dermott Special Sch. Dist. v. Johnson) classifies school districts as political subdivisions, not state agencies. So a school district contracting with a private vendor that requires a vaccine is probably outside § 20-7-146 entirely. The mask statute does cover school districts because § 20-7-144(b) reaches "political subdivision[s] of the state."
Does this opinion settle whether the de facto mandate theory will succeed in court?
No. The AG flagged the theory and gave a textbook example, but emphasized this is a fact-intensive inquiry. No Arkansas case has yet tested the de facto mandate theory under § 20-7-146 or § 20-7-144. If you are litigating one, you are in early-stage territory.
Background and statutory framework
A.C.A. § 20-7-146(c) (the COVID vaccine ban). Added by Act 4 of the 2023 First Extraordinary Session. Provides that "[r]eceiving a vaccine or immunization for COVID-19 or any subvariants… shall not be a condition of education, employment, entry, or services from the state or a state agency or entity or for obtaining a licensure, certificate, or permit from a state agency or entity." Silent on political subdivisions and silent on private businesses.
A.C.A. § 20-7-144 (the face-covering ban). Subsection (b) bars a "state agency or entity, a political subdivision of the state, or a state or local official" from mandating the use of a face mask, face shield, or other face covering. Subsection (c) bars use of a face covering as a condition of entry, education, or services. Subsection (e)(1) carves private businesses out of subsections (b) and (c). Subsection (e) also exempts state-owned or state-controlled healthcare facilities, Department of Correction facilities, and Division of Youth Services facilities.
State actor doctrine. In Smith v. Insley's Inc., 499 F.3d 875 (8th Cir. 2007), federal courts have characterized private parties as "state actors" in fact-specific contexts. The AG flagged this as a wrinkle: a private contractor performing a state function could in some contexts be treated as the state for legal purposes. The AG declined to opine on whether any specific Arkansas contractor crosses that line.
De facto mandates. "De facto" means "actual; existing in fact" (Black's Law Dictionary, 11th ed. 2019). The AG's example: a state agency has the choice between two substantially equivalent private contractors, picks the one with a COVID or mask requirement, and the requirement was the deciding factor. A court could find the state used the private contractor to do indirectly what the statute forbids it from doing directly.
Political subdivisions vs. state agencies. A.C.A. § 10-4-402(a)(5) defines "political subdivisions" to include "any...school." A.C.A. § 17-25-403(a) treats school districts and political subdivisions as separate from state agencies. The Arkansas Supreme Court in Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000), held that school districts are political subdivisions, not state agencies. So statutes that restrict only "state agency or entity" (like § 20-7-146(c)) do not reach school districts.
Citations
- A.C.A. § 20-7-146(c) (COVID-19 vaccine condition ban)
- A.C.A. § 20-7-144(b) (face-covering mandate ban for state and political subdivisions)
- A.C.A. § 20-7-144(c) (face-covering as condition of entry, education, or services)
- A.C.A. § 20-7-144(e)(1) (private business carve-out from face-covering ban)
- Act 4 of 2023, 1st Extraordinary Session (codified at § 20-7-146)
- A.C.A. § 10-4-402(a)(5) (defining "political subdivisions" to include schools)
- Smith v. Insley's Inc., 499 F.3d 875 (8th Cir. 2007) (state actor doctrine)
- Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000) (school districts as political subdivisions)
Source
Original opinion text
Opinion No. 2023-088
March 25, 2024
The Honorable Joshua Paul Bryant
State Senator
Post Office Box 718
Rogers, Arkansas 72757
Dear Senator Bryant:
I am writing in response to your request for my opinion on questions concerning the legality of contractual partnerships between the state and a private business that require (1) a COVID-19 vaccination, booster, or both; or (2) a face mask, face shield, or other face covering as a condition of doing business. You have asked two questions, some of which I have paraphrased.
- Under Act 4 of 2023, 1st Extraordinary Session, as codified in A.C.A. § 20-7-146(c), may a covered state agency or entity contractually partner with a private business for the purpose of offering education, employment, entry, or services to the public if that private business requires a COVID-19 vaccination, booster, or both as a condition to receiving the state's offer?
Brief answer: Generally, yes. A.C.A. § 20-7-146(c) does not prohibit government-contracting private businesses from requiring a COVID-19 vaccination, booster, or both as a condition to providing its services. But a court may find the state violated the statute if the state intentionally uses private businesses to de facto require a COVID-19 vaccination, booster, or both.
- Under A.C.A. § 20-7-144(c), may a covered state agency, entity, or political subdivision of the state contractually partner with a private business to offer public services—such as education—if that private business requires a face mask, face shield, or other face covering as a condition to receiving the state's offer?
Brief answer: Generally, yes. A.C.A. § 20-7-144(c) does not prohibit government-contracting private businesses from requiring a face mask, face shield, or other face covering as a condition to providing its services. But a court may find the state violated the statute if the state intentionally uses private businesses to de facto require a face mask, face shield, or other covering.
DISCUSSION
Question 1: Under Act 4 of 2023, 1st Extraordinary Session, as codified in A.C.A. § 20-7-146(c), may a covered state agency or entity contractually partner with a private business for the purpose of offering education, employment, entry, or services to the public if that private business requires a COVID-19 vaccination, booster, or both as a condition to receiving the state's offer?
Under A.C.A. § 20-7-146(c), "[r]eceiving a vaccine or immunization for…COVID-19…or any subvariants…shall not be a condition of education, employment, entry, or services from the state or a state agency or entity or for obtaining a licensure, certificate, or permit from a state agency or entity."
Section 20-7-146(c) does not include, apply to, or even refer to private businesses. When a person receives services from a private business, even if that private business is under contract with the state, it is the private business, not the state, providing those services. Therefore, the state would not violate A.C.A. § 20-7-146 if a private business that contracted with the state requires a COVID-19 vaccine or immunization as a condition of providing education, employment, entry, or services, so long as the state, state agency, or state entity itself does not require the vaccine or immunization.
Even if the state, state agency, or state entity does not expressly require a COVID-19 vaccine or immunization, there may be some situations in which a court might find a state agency or entity has violated A.C.A. § 20-7-146 by de facto mandating or requiring a COVID-19 vaccine or immunization. For example: Suppose that a state agency or entity has the option to contract with two private businesses, one that mandates or requires COVID-19 vaccinations or immunizations and one that does not. Other than these requirements, both private businesses are substantially equivalent and offer substantially equivalent services. But the state agency or entity intentionally selects the one business that mandates or requires a COVID-19 vaccination or immunization. Based on these facts, a court could find that the state agency or entity de facto mandates or requires COVID-19 vaccinations or immunizations when it intentionally selects the one business that mandates or requires such vaccinations or immunizations and, therefore, violates A.C.A. § 20-7-146.
Further, subsection (c) does not expressly apply to or even refer to any political subdivision of the state, or any state or local official. So the above restrictions likely do not apply to school districts, which are best characterized as "political subdivisions."
Question 2: Under A.C.A. § 20-7-144(c), may a covered state agency, entity, or political subdivision of the state contractually partner with a private business to offer public services—such as education—if that private business requires a face mask, face shield, or other face covering as a condition to receiving the state's offer?
Under A.C.A. § 20-7-144(b), a "state agency or entity, a political subdivision of the state, or a state or local official" cannot mandate or require someone to "use a face mask, face shield, or other face covering." And, under A.C.A. § 20-7-144(c), the "use of a face mask, face shield, or other face covering" cannot "be a condition for entry, education, or services." But A.C.A. § 20-7-144(e)(1) expressly excludes private businesses from any of the face mask, face shield, or face covering restrictions under subsections (b) and (c).
Therefore, Arkansas law does not prohibit a private business from requiring a face mask, face shield, or other face covering as a condition to a contract with the state or as a condition of employment. The private business may do so, as long as the state or political subdivision of the state, including a state or local official, does not require the use of a face mask, face shield, or other face covering as a prerequisite to offering services or entering into a contract with a private business.
Similar to my discussion above that de facto requirements may violate A.C.A. § 20-7-146, there may be some situations in which a court might find a state agency or entity, a political subdivision of the state, or a state or local official has violated A.C.A. § 20-7-144 by de facto mandating or requiring a face mask, face shield, or face covering. For example: Suppose that a public school district has the option to contract with two private businesses, one that mandates or requires a face mask, face shield, or face covering, and one that does not. Other than these requirements, both private businesses are substantially equivalent and offer substantially equivalent services. But the school district intentionally selects the one business that mandates or requires a face mask, face shield, or face covering. Based on these facts, a court could find that the school district de facto mandates or requires face masks, face shields, or face coverings when it intentionally selects the one business that mandates or requires such masks, shields, or coverings and, therefore, the school district violates A.C.A. § 20-7-144.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General