[co-author: Caroline Margolis]
As states begin lifting pandemic restrictions, employers are considering ways to bring their workers back to the workplace safely. Since the roll out of the COVID-19 vaccine, states across the country have been proposing COVID-19 vaccination bills that will impact employers’ workplace vaccination policies. The majority of these bills aim to prohibit mandatory COVID-19 vaccinations.
The North Carolina General Assembly has proposed House Bill 572. It prohibits the Governor or any state agency from mandating COVID-19 vaccinations through executive action. Having cleared the House on Monday, May 10, 2021, the bill will have until the end of the 2021-2022 legislative session to become law.
Other states proposing COVID-19 legislation are taking two general approaches. The first category prohibits employers from discriminating against employees based on vaccination status and prohibits employers from requiring proof of vaccination. The second category grants employers discretion to require employee vaccination.
The vast majority of states fall in category 1. These states include Alabama; Alaska; Connecticut; Hawaii; Idaho; Illinois (exemption for veterans homes, nursing homes, and intensive care employees who can be subject to vaccination requirement); Indiana; Iowa; Kansas; Louisiana; Maine; Maryland; Michigan; Minnesota; Missouri; Nebraska; New Hampshire; New Jersey; New Mexico; New York; Oklahoma; Pennsylvania; South Dakota; Tennessee; Texas; Vermont; Virginia; Washington; West Virginia (applies only to health care employees); and Wisconsin, as well as Washington D.C.
Many of the category 1 bills also create express causes of action against employers. The range of proposed sanctions includes injunctions, compensatory damages, punitive damages, costs and attorney fees (Louisiana); treble damages (Michigan); reinstatement with back pay plus 10% interest (Iowa); and flat fines ranging from $100 (Oklahoma), $500 (Washington D.C.) or $1,000 (West Virginia). The steepest penalties are in Tennessee’s joint Senate Bill 564 and House Bill 1269 which impose a $1,000 fine for the first act of discrimination, $10,000 for the second, and $750,000 for the third and each subsequent violation. Additionally, there are a few states considering bills prohibiting governmental, but not other, employers from mandating COVID-19 vaccinations (California, Georgia, Ohio, and Utah).
Category 2 states have proposed bills that would allow (but not require) employers to mandate that employees be vaccinated. These states are Massachusetts, Montana (exemptions for medical or religious reasons), and South Carolina (for employees treating people over 60).
Only two states have actually enacted legislation addressing employee vaccination: Arkansas and Oregon (health care workers, only). These laws prohibit employers from discriminating against unvaccinated individuals or coercing individuals to receive a COVID-19 vaccine. Discrimination, as defined in these laws, includes withholding career advancement, wage increases, or insurance discounts.
Employers should continue to monitor state legislation as they evaluate whether to encourage, incentivize, mandate, or remain neutral with respect to employee vaccination. In addition, the Equal Employment Opportunity Commission has guidance related to employee vaccination that will likely continue to be updated and should be considered in consultation with counsel when developing return to the workplace policies.