Mississippi recently passed House Bill 1509 (the “act”) codifying employees’ right to choose whether to be vaccinated against COVID-19, which some commentators believe would limit employers’ ability to impose mandatory vaccine requirements. But private employers with vaccine mandates can breathe easy. The act does not create a basis for a wrongful termination claim against a private employer under Mississippi’s common law. Further, private employers that do have a mandate are protected if they are healthcare facilities or, likely, if they are following CDC guidance.

Here’s what you need to know:

Overview of House Bill 1509 and Mississippi’s employment law landscape

To start with, Mississippi lacks an anti-discrimination employment law regime applicable to private employers. Currently, Mississippi statutes only prohibit discrimination in employment or hiring practices for those in state service(see Miss. Code Ann. § 25-9-149). House Bill 1509 adds a prohibition against discrimination based on vaccine status.

The bulk of the act applies to public employers, including “any state agency, public official, state institution of higher learning, public college, or political subdivision,” and makes it unlawful for any such person or entity to discriminate against an individual based on (1) their COVID-19 vaccination status or (2) whether they have a vaccine passport. The law also provides that children will not be required to receive a COVID-19 vaccine as a condition of school attendance.

Only one provision of the act arguably applies to private employment and it provides that:

An employee of any public or private employer who has a sincerely held religious objection to receiving a vaccine for COVID-19 shall not be required to receive a vaccine for COVID-19. (H.B. 1509 §1 (5))

Notably, the language of the law limits its application to employees — not applicants. So, it does not apply to vaccine requirements imposed upon new applicants before they are hired. The Legislature gave few clues to assist in the law’s interpretation — it offers no defined terms section and nothing to indicate where the act will fit in Mississippi’s larger statutory framework.

The act does provide a blanket exception for “health care facilities,” which are not required to comply with the act “during any period of time that compliance with this act would result in a violation of regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention” (H.B. 1509, Section 2). This is in line with other COVID-19 legislation Mississippi has previously enacted, including statutory immunity for companies that attempt to follow public health guidance.

Does the act create a wrongful termination claim under Mississippi law if a private employer fires an employee for failing to get vaccinated? Probably not.

Mississippi is an employment-at-will state, which means that where an employer and an employee have a contract of employment for an indefinite term, it may be terminated at the will of either party. However, Mississippi has recognized an exception that allows employees to bring wrongful discharge claims in certain, limited circumstances. Employees may bring a wrongful termination claim if (1) the termination was based on the employee’s refusal to participate in illegal activity; (2) the termination was based on the employee’s reporting of illegal activity of the employer to anyone else; or (3) the employer terminates an employee for reasons that are “independently declared legally impermissible” (see McArn v. Bruce-Terminix Co., 626 So. 2d 603, 606 (Miss. 1993)). 

In deciding whether an employer’s actions have been declared legally impermissible, courts generally require a showing that the legislature expressly prohibited an employer from doing some act.   For instance, the Mississippi Supreme Court rejected a plaintiff’s attempt to base a wrongful discharge claim on his employer’s alleged violation of his right to file a worker’s compensation claim — a statutorily recognized right of employees — because the law itself did not provide for a retaliatory discharge claim or explicitly state it was a crime to discharge an employee for making a claim (see Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 874-75 (Miss. 1981)).

The court has, however, upheld an employee’s wrongful discharge claim arising from an employer’s violation of a statute that expressly limited an employer’s right to enforce any rule that would prevent its employees’ from storing a firearm in a locked vehicle (see Swindol v. Aurora Flight Sciences Corp., 194 So. 3d 847 (Miss. 2016)). In Swindol, the court found that the Legislature had effectively “declared it ‘legally impermissible’ for an employer to terminate an employee for having a firearm inside his locked vehicle on company property.” The plaintiff — an employee fired in violation of that statute — had an actionable claim for wrongful discharge as a result. The court in Swindol also relied upon the Mississippi Constitution’s grant to citizens of the right to bear arms in articulating why the statutory framework met the “express legislative action” and “state law prohibitions” envisioned by the Kelly and McArn courts.

Looking at House Bill 1509 under Mississippi’s Supreme Court precedent, it does not appear that the provision regarding employees’ sincere religious objections would support a wrongful termination claim. The plain text of House Bill 1509 only defines an employee’s statutory right and does not expressly prohibit a private employer from taking any action. It does not specifically limit a private employer’s right to terminate an employee for failing to be vaccinated. Because House Bill 1509 imposes no specific prohibitions on a private employers, the Supreme Court is unlikely to find that House Bill 1509 makes firing an employee who refuses to get an employer-mandated vaccine an “independently declared legally impermissible” act, sufficient to create an exception to the employment-at-will doctrine. However, the same analysis is not true for the act’s provisions related to public employers, which includes an express prohibition against discrimination on the basis of vaccination status or whether or not the employee has a vaccination passport. Accordingly, employees of public agencies or public officials fired for refusing a vaccination could likely assert a wrongful termination claim.

Private employers should proceed with caution.

It would be prudent for private employers to tread carefully until the court has a chance to interpret the statute. The text of the act offers little to aid in its interpretation. It provides no definition of an employee’s “sincerely held religious objection.” And there is no explanation of where the act would fall in the statutory landscape of Mississippi’s Code, which could otherwise aid in its interpretation.  This uncertainty may assist employers imposing a vaccine mandate, however. The act does not define “health care facility,” and any entity that could find some way to fall within the term would be exempt from any of the act’s compliance obligations — to the extent they exist — while it is following regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention. Private employers may also rely on Mississippi’s statutorily granted immunity applicable to companies that attempt to follow public health guidance, though it is unclear whether the immunity applies outside the context of a personal injury action.

For the time being, private employers would be prudent to follow established federal guidelines for offering reasonable accommodations for employee’s sincerely held religious beliefs. More guidance on this can be found here. For private employers currently subject to Title VII’s provisions, properly addressing an employee’s faith-based objections to an employer’s vaccine requirement was already a concern. There is nothing in the text of the law that would inherently conflict with a private employer’s obligations under Title VII.

If a public employer has already fired someone for refusing a vaccine, does HB 1509 apply retroactively? 

House Bill 1509, Section 4 provides “[t]his act shall take effect and be in force from and after its passage.” Mississippi law presumes that statutes are intended to be applied prospectively in the absence of clear language to the contrary. The plain language of the law demonstrates legislative intent for the law to operate only prospectively. Accordingly, the law does not apply retroactively and, therefore, could not create a cause of action for anyone that was terminated in violation of the law before the law took effect on April 21, 2022.

The Department of Labor (DOL) recently proposed new federal regulations regarding how minimum wages will be calculated for federal construction projects. DOL’s new proposal will add to the cost of performing these projects. The comment period for the new regulations will be closing soon, and we then will be able to see what the next steps will be.

The federal law known as the Davis-Bacon Act, or DBA, became law in the 1930s and provided that workers on federal construction contracts must be paid what is known as the “prevailing wage” for workers in the area of the project. The law was intended to keep federal contractors from bidding work based upon wage rates for workers who could be imported from areas other than where the project was to be performed.

From the DBA’s inception until the Reagan era of the early 1980s, a methodology was used for determining prevailing wage rates that would allow rates to be based upon as low as 30% of the relevant workforce. The Reagan administration, believing that the DBA rule contributed significantly to inflation, rewrote the rule to take into account a larger cross section of workers.

The Biden administration now has proposed returning to the pre-Reagan era rule. This proposed change would raise prevailing rates and further allow for periodic upward adjustments for certain wage rates. The Biden administration disputes that the impact of inflation should be considered in implementing the new prevailing wage rule.

So, if you are a federal contractor performing work subject to the DBA, be on the lookout for new developments regarding prevailing wages soon. Also be ready for increases of applicable prevailing wages as the new regulations are implemented.

For the past three years, Mississippi remained the only state in the country that did not have a bill prohibiting pay discrimination based on gender. This all changed on April 20, 2022, when Mississippi Gov. Tate Reeves signed House Bill 770, also known as the “Mississippi Equal Pay for Equal Work Act,” into law.  

The Mississippi Equal Pay for Equal Work Act prohibits an “employer [from paying] an employee a wage. . . less than the rate at which [an] employee of the opposite sex . . . is paid for equal work on a job. . . [that] requires equal skill, education, effort and responsibility, [while performed] under similar working conditions[.]” The act does provide several exceptions, including difference in wages due to pay being dependent upon:

  • a seniority system;
  • a merit system;
  • a system that measures earnings by quantity or quality of production; or
  • any other factor other than sex.

Any other factor than sex, can include, but is not limited to:

  • the comparator’s salary history or continuity of employment history;
  • whether there was competition with other employers for the comparator’s services; and
  • whether the comparator negotiated for higher wages.

While comparable to the federal Equal Pay Act in many ways, Mississippi employers should be aware that the new state law allows for employees to bring an equal pay action to state court, which in turn, prevents Mississippi employers from being able to remove the action to federal court. Furthermore, any action brought under the act may be commenced no later than two years from the day the employee knew or should have known that their employer was in violation of the act. If brought under the act, the employee waives their right to relief under the federal Equal Pay Act. If the Mississippi employee prevails on their gender-based discrimination claim, the employee is entitled to attorneys’ fees, prejudgment interest, back pay, liquidated damages and 100% of the difference of unpaid wages. The Mississippi Equal Pay for Equal Work Act will take effect on July 1, 2022. Mississippi employers are encouraged to revise and/or implement human resource policies and procedures that are in accordance with the new law.