Introduction

In Powerback Rehabilitation v. Kansas Department of Labor, the Kansas Supreme Court addressed a cutting‑edge question at the intersection of federal preemption, agency rulemaking, and religious accommodation law during the COVID‑19 era. The case arose when an employer, Powerback Rehabilitation, rescinded a job offer to an occupational therapist, Katlin Keeran, after denying her requested religious exemption from its COVID‑19 vaccination policy. Kansas law—K.S.A. 2023 Supp. 44‑663—requires employers with COVID‑19 vaccine mandates to grant religious exemptions upon an employee’s written attestation and forbids employers from inquiring into the sincerity of the request. By contrast, the federal CMS “Vaccine Mandate” (later withdrawn) required vaccination for Medicare/Medicaid providers but, through reference to “applicable Federal law,” contemplated Title VII accommodations processes that often allow employers to probe sincerity and consider undue hardship.

The core issues were whether Kansas’ “no sincerity inquiry” requirement is preempted by federal law and whether the statute violates due process. The district court held for the employer, finding preemption and a due process violation. The Kansas Supreme Court reversed, holding there is no preemption or due process violation because the federal scheme permits, but does not require, sincerity inquiries; preambles cannot supply preemptive force; and Kansas’ statute rationally advances religious liberty.

The decision refines two significant preemption principles: courts evaluate conflict based on binding regulatory text rather than preambles, and where federal law permits—but does not require—private conduct, a state may forbid it.

Summary of the Opinion

• Holding: The Kansas Supreme Court reversed the district court and remanded. It held that K.S.A. 2023 Supp. 44‑663 is not preempted by the CMS Vaccine Mandate or Title VII and does not violate due process.
• New Precedential Principles (Syllabus):
  • Regulatory preambles are insufficient to establish a conflict for preemption; courts must conduct conflict analysis based on the regulatory text.
  • When a federal law permits (but does not require) action by a private party, a state can generally prohibit that action (here, inquiries into religious sincerity).
• Preemption—Express: The CMS preamble’s preemption statements lacked binding force; the regulation’s operative text contained no express preemption.
• Preemption—Implied (Conflict):
  • Impossibility: No impossibility because Title VII and the CMS rule merely allow sincerity inquiries; they do not mandate them. Employers can comply with both regimes by granting the exemption without inquiry.
  • Obstacle: Policy tension between Kansas’ robust religious exemption and CMS’ vaccination goals does not create preemption; the presumption against preemption in areas of traditional state police powers (health and safety) applies.
• Due Process: The statute survives rational basis review (legitimate interest: protecting religious liberty) and affords procedural due process through notice, investigation, and judicial review under the KJRA.
• Dissent: Justice Standridge (joined by Justice Rosen) argued Kansas law is preempted because it nullifies employers’ federally protected ability to assess sincerity and deny accommodation for undue hardship, thus upsetting Title VII’s balance. The majority rejected the premise that Title VII creates employer “rights” of that sort and emphasized the regulatory‑floor concept.

Analysis

Precedents Cited and Their Influence

• Wyeth v. Levine, 555 U.S. 555 (2009): The Court relied on Wyeth’s insistence that courts perform their own conflict analysis and that agency proclamations of preemption—especially in preambles—do not control. Wyeth also articulates a presumption against preemption in domains historically regulated by states.
• Arizona v. United States, 567 U.S. 387 (2012): Cited for the two strands of conflict preemption: impossibility and obstacle. The majority applied Arizona’s framework to conclude compliance with both regimes was possible and that Kansas’ law did not obstruct federal objectives.
• Kansas v. Garcia, 589 U.S. 191 (2020): Used to underscore that overlap with federal law and divergence in enforcement priorities do not themselves establish conflict preemption. The Court analogized this principle to the present federal‑state vaccination/religious exemption overlap.
• Hillsborough County v. Automated Medical Labs., 471 U.S. 707 (1985): Reinforced the presumption against preemption in areas of traditional state police power (health and safety), supporting Kansas’ sovereignty in public health and employment regulation.
• AT&T Corp. v. FCC, 970 F.3d 344 (D.C. Cir. 2020), and Peabody Twentymile Mining v. Sec’y of Labor, 931 F.3d 992 (10th Cir. 2019): Both emphasize that regulatory preambles are not binding law, bolstering the holding that CMS’s preamble cannot itself preempt state law.
• California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 291 n.29 (1987): Interprets 42 U.S.C. § 2000e‑7 to mean Title VII preempts only state laws that require or permit conduct that would itself be an unlawful employment practice under Title VII. The majority used this to clarify that Kansas can expand protections without violating the Supremacy Clause.
• Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963), and Williamson v. Mazda, 562 U.S. 323 (2011): Both support the “federal floor, not ceiling” conception, explaining that states can impose more stringent standards unless Congress intends otherwise.
• Biden v. Missouri, 595 U.S. 87 (2022): Confirmed CMS’s statutory authority to impose the Vaccine Mandate, removing any threshold validity challenge—though it did not resolve the preemption question in this case.
• Merck Sharp & Dohme v. Albrecht, 587 U.S. 299 (2019): Quoted for the idea that a mere “possibility of impossibility” is not enough to establish conflict preemption.
• Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975): Used to reorient the analysis: Title VII safeguards employee rights against discrimination; it does not create freestanding employer “rights” to probe or to deny.
• Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014): Cited to caution against judicial policing of religious beliefs’ correctness, supporting Kansas’ choice to eliminate sincerity inquiries in this narrow context.

Legal Reasoning and Path to Decision

The Court’s reasoning unfolds in three principal steps—express preemption, implied conflict preemption, and due process.

• Express preemption fails: The binding source of law is the regulatory text, not the preamble. Because the CMS Vaccine Mandate’s operative provisions do not contain preemptive language and the preamble lacks legal force, the express preemption claim fails at the threshold.
• Implied conflict preemption fails for two reasons:
  • Impossibility: Title VII and the CMS rule allow, but do not require, sincerity inquiries. Kansas prohibits such inquiries for COVID‑19 vaccine mandates. Because the federal scheme is permissive, an employer can comply with both regimes by granting the exemption without questioning sincerity. The Court emphasized § 2000e‑7 and the “regulatory floor” concept: states may strengthen anti‑discrimination protections so long as they do not authorize what federal law forbids.
  • Obstacle: The “policy mismatch” between maximizing vaccination and maximizing religious protection is not enough to show the state law frustrates federal objectives. Applying Garcia and Wyeth, the Court noted the presumption against preemption in public health and the lack of empirical proof that Kansas’ statute actually undercut CMS’s goals.
• Due process claims fail:
  • Procedural due process: Employers receive notice, investigation, and review under K.S.A. 44‑663 and the KJRA. Because no true preemption conflict exists, the asserted “no‑win” predicament evaporates.
  • Substantive due process: Under rational basis review, protecting religious liberty is a legitimate state interest, and barring sincerity inquiries is rationally related to that interest. The district court’s critique of legislative speed and federal disagreement is not a constitutional defect.

The Dissent and the Majority’s Rejoinder

The dissent argues Kansas law is preempted because it removes two core elements of the federal accommodation framework—the ability to assess sincerity and the ability to deny based on undue hardship—thereby making compliance with both systems impossible and frustrating federal objectives. It characterizes these elements as federally protected employer rights within Title VII’s “balanced” scheme.

The majority responds that this inverts Title VII. The statute is designed to protect employees, not to entrench employer prerogatives. Because Title VII does not require sincerity inquiries (and § 2000e‑7 recognizes room for more protective state laws), there is no impossibility. And without proof that Kansas’ rule obstructs federal objectives—beyond speculation that insincere claims might proliferate—obstacle preemption does not attach, especially against the backdrop of state police‑power primacy in health and safety.

Impact and Forward‑Looking Consequences

• Administrative law and rulemaking: Agencies cannot rely on preambles to achieve preemption. Litigants must identify a conflict in the operative regulatory text. Preambles can inform context but lack binding force for preemption.
• Preemption doctrine: The opinion strengthens a “permission‑is‑not‑preemption” rule: if federal law permits (but does not require) certain conduct by private parties, states may forbid it unless Congress has clearly established a federal ceiling. Courts will scrutinize whether a federal framework is a floor, leaving space for more protective state regulation.
• Religious accommodation and employment law: For Kansas COVID‑19 vaccine mandates, employers must grant religious exemptions upon attestation without probing sincerity. This state‑level augmentation of protection is consistent with Title VII’s floor. Employers should not rely on discretionary inquiries permitted by federal law to override Kansas’ statutory prohibition.
• Medicare/Medicaid providers in Kansas: Even when federal participation conditions (like the now‑withdrawn CMS Vaccine Mandate) incorporate Title VII processes, Kansas providers can comply with both by foregoing sincerity inquiries and granting religious exemptions. The Court rejected the argument that compliance risks federal funding as an “undue hardship” under Title VII on these facts.
• Beyond COVID‑19: The decision’s logic applies across regulatory contexts where federal rules permit employer discretion (e.g., certain screening or verification practices). Unless federal law requires the practice or clearly sets a ceiling, states can restrict or prohibit it.
• Litigation strategy: Preemption arguments premised on agency preambles or on speculative conflicts will face headwinds. Parties should develop record evidence of genuine impossibility or demonstrable obstruction of federal objectives.

Complex Concepts Simplified

• Preemption (Supremacy Clause): Federal law prevails over conflicting state law. Express preemption arises from explicit statutory language. Implied preemption includes:
  • Field preemption: Federal regulation is so pervasive it occupies the field.
  • Conflict preemption: Either impossible to comply with both regimes, or state law obstructs federal purposes.
• Regulatory preamble vs. regulatory text: The preamble explains the rule but is not binding law; the codified text governs. Preambles cannot, by themselves, preempt state law.
• Title VII religious accommodation: Employers must reasonably accommodate an employee’s religious beliefs unless doing so causes “undue hardship” (now defined as “substantial increased costs” relative to the business). Title VII typically allows (but does not require) an employer to ask for information to assess the sincerity and religious nature of the belief.
• Regulatory floor vs. ceiling: A federal “floor” sets minimum protections that states can strengthen. A “ceiling” precludes more protective state laws. Title VII generally sets a floor (42 U.S.C. § 2000e‑7).
• Rational basis review: A deferential standard under which a law is upheld if it is rationally related to a legitimate governmental interest. Protecting religious liberty qualifies, and the means chosen need not be the least restrictive.
• KJRA procedural framework: Kansas’ Judicial Review Act affords notice, investigation, a final agency order within set timelines, and judicial review—satisfying procedural due process.

Conclusion

Powerback Rehabilitation v. Kansas Department of Labor articulates two durable rules for federal‑state relations: courts must find preemption in binding regulatory text, not preambles, and federal permission is not preemption—states may forbid what federal law merely allows absent a clearly expressed federal ceiling. Applying those principles, the Kansas Supreme Court harmonized CMS’s vaccine framework and Kansas’ robust religious‑exemption statute, concluding that employers subject to both can comply by granting exemptions without any sincerity inquiry.

The decision fortifies state sovereignty in traditional police‑power domains, clarifies the “regulatory floor” character of Title VII, and signals that preemption will not be lightly inferred from agency commentary or speculative conflicts. For Kansas employers—especially healthcare providers—the case delivers a clear compliance path and underscores that, in this context, employee religious‑exemption attestation must be honored without probing sincerity. More broadly, the ruling offers a methodological template for future preemption disputes at the boundary of federal discretion and state protective legislation.