As we are sure you have heard, many people are not all that psyched about the federal government mandating that employees get vaccinated. Just to keep everyone on the same page in these ever-changing times, here is a quick update on the various court actions and a new Alabama law regarding vaccination exemption requests:
1. Stayed Mandates Across the Board
- Federal Contractor Mandate — STAYED. As you know, the White House issued an executive order mandating that employees of federal contractors be vaccinated. In State of Georgia v. Joseph R. Biden, a federal district court in Georgia issued a nationwide injunction of this vaccine mandate.
- CMS Mandate for Healthcare Workers — STAYED. For those in the healthcare industry, you know that the Centers for Medicare & Medicaid Services (CMS) mandated COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement. In State of Missouri v. Joseph R. Biden, a federal district court stayed the CMS mandate in 10 states. The next day, in State of Louisiana v. Beccerra, another federal district court issued an injunction to stay the CMS mandate everywhere. Then CMS released a QSO memo advising state survey agencies they should not enforce the Interim Final Rule (IFR) regarding the vaccine mandate or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers while there are court-ordered injunctions in place pending additional clarity from the courts.
- OSHA Mandate — STAYED. Finally, the OSHA Emergency Temporary Standard that mandated vaccination for employers with 100 or more employees is also on hold. As we have previously reported, the OSHA mandate is stayed and now pending before the Sixth Circuit, and OSHA has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
So, those of you who were trying to figure out how to comply with the various federal vaccine mandates can take a deep breath. This isn’t over but we are in a time out for now.
2. New Alabama Law on Employee Vaccination Exemptions
If you are an Alabama employer who has (regardless of the federal mandate stays) implemented a vaccine requirement for your workforce, you are still free to do that, subject to a universal request form and appellate review process. Alabama passed a law last month setting forth new requirements for mandatory vaccine exemptions, which are further described below. (If you required employee vaccination prior to November, you don’t need to revisit old exemption requests, but you should begin offering this universal form to your new hires.) This new law is in place until May 1, 2023.
The law expressly provides that employers may not require employees to receive the COVID-19 vaccination as a condition of employment without first providing employees the opportunity to be exempted for a sincerely held religious belief or medical reason. The law provides that employers must “liberally construe” an employee’s eligibility for exemption from vaccination, and the employee’s submission of the completed form creates a presumption that the employee is entitled to the exemption.
That exemption must be offered through a universal request form, which is available online. Employers must make the form available to all employees, along with instructions for submitting the form. Once an employee submits a request form, the employer must maintain a copy of it.
The form includes the miscellaneous reasons that an employee may seek the exemption:
- My healthcare provider has recommended to me that I refuse the COVID-19 vaccination based on my current health conditions and medications.
- I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
- I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
- I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
- I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the past 90 days.
- I have a bleeding disorder or am taking a blood thinner.
- I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
- I have been diagnosed with COVID-19 in the past 12 months.
- Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.
The form makes clear that reason no. 1 requires the signature of a licensed healthcare provider. The remaining reasons require no backup documentation other than the signature of the requesting employee.
After denying an exemption request, the employer must provide the employee with instructions to file a request for review with an administrative law judge, which must be submitted within seven days of the denial. (These instructions are also available online.) Once the employee submits a request for review, the employer may provide any pertinent information for the administrative law judge’s consideration before issuing a determination. The administrative law judge must issue a determination within 30 days of receiving the request. If the administrative law judge upholds the denial, the employee may then file an appeal in court. An employer may not terminate an employee on the basis of failure to get vaccinated whose exemption request has been denied until seven calendar days after the denial, or until the completion of the appellate review process.
Separate from this law, Alabama employers should be considering religious and medical exemption requests to vaccination under Title VII and the Americans with Disabilities Act as applicable, but this adds structure, expedited appellate review under state law, and a thumb on the scale in the employee’s favor.
Stay tuned for additional developments on the vaccine front.