States Limit Employer Power to Require the Jab

Bryan Cave Leighton Paisner
Contact

With OSHA’s COVID-vaccination mandate now stayed (almost certainly forever), and the vaccination mandate for government contractors also stayed (probably forever), U.S. employers must decide whether to impose their own COVID vaccination mandates on employees.  And state laws will have something to say about that.

The chart below summarizes current state laws that restrict a private sector employer’s ability to impose a COVID vaccination mandate on its employees.  In almost all cases, these state restrictions go beyond the federal requirements under the Americans with Disabilities Act and Title VII that employers reasonably accommodate disability or sincerely-held religious belief absent undue hardship.

Other states may add their own restrictions in the coming weeks and months.

State

Summary of Vaccination Exemption

Citation

Alabama

ERs may not require EE to be vaccinated as condition of employment without allowing EE to claim religious and medical reasons. Exemption eligibility must be “liberally construed.” EE’s submission of the universal request form (available here) creates a presumption EE is eligible for exemption.

Act 2021-561

Arizona

If an ER received notice from EE that EE’s sincerely held religious beliefs prevent the ER from taking vaccine, ER shall provide a reasonable accommodation unless the accommodation would pose an undue hardship and more than a de minimis cost to the ER.

A.R.S. § 23-206

Arkansas

ERs must allow EEs to opt out of vaccine requirements if they’re tested weekly or can prove that they have antibodies for the virus.

A.C.A. § 11-5-118

Florida

ER may not impose a vaccine mandate unless EE may opt out based on:

  1. Medical reasons, as determined by a physician, advanced practice registered nurse (APRN) or physician assistant (PA). Medical reasons include pregnancy or expectation of pregnancy.
  2. Religious reasons, based on a sincerely held belief
  3. Immunity based on prior COVID-19 infection, as documented by a lab test
  4. Periodic testing, agreeing to comply with regular testing at no cost to the employee
  5. Personal protective equipment (PPE), agreeing to comply with use of employer-provided PPE

F.S.A. § 381.00317

Illinois

Illinois law prohibits ERs from discriminating against EEs who object to health care services based on personal conscience. Under this law, Illinois courts have prohibited enforcement of ER vaccine mandates against EEs with a conscience objection. Illinois recently passed SB 1169, which amends the Act to clarify that it does not apply to ER vaccine mandates. The amendment is not effective until June 1, 2022. Thus, ER’s should proceed with caution until June 1, 2022.

745 ILCS 70/7

SB 1169

Iowa

ER shall waive any vaccine requirement if the EE submits to ER: (1) a statement that receiving a vaccine would be injurious to the EE’s health and well-being, or (2) a statement that receiving the vaccine would conflict with the tenets and practices of a religion of which the employee is an adherent or member. 

I.C.A. § 94.2

Kansas

If ER implements vaccine requirement, ER shall exempt EE if EE submits a written statement stating that such a requirement would:

  1. Endanger EEs life, as signed by physician
  2. Violate sincerely held religious beliefs of EE, as signed by EE.

HB 2001

Montana

It is unlawful for an ER to refuse employment, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment based on the person's vaccination status or whether the person has an immunity passport.

An individual may not be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials

MCA 49-2-312

North Dakota

Individuals are exempt from any employer vaccination requirement if they submit proof of COVID-19 antibodies, have a medical condition, have a religious, philosophical, or moral belief opposing immunization, or submit to periodic COVID-19 testing.

NDCC § 34-03-10

Tennessee

ER shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.  An adverse action includes any discrimination against a person by denying the person employment; or discharging, threatening, or otherwise discriminating against an employee in any manner that affects the employee's employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.

T.C.A. § 14-2-102

Texas

Executive Order banning all entities, including private businesses, from compelling receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Executive Order No. GA-40

Utah

ER shall relieve EE of vaccine any requirement if EE submits statement that vaccine would:

  1. be injurious to the health and well-being of the EE;
  2. conflict with a sincerely held religious belief, practice, or observance of the EE; or
  3. conflict with a sincerely held personal belief of the EE.

U.C.A. § 26-68-201

West Virginia

ER must exempt EE from vaccination requirement upon the presentation of a certification of medical exemption signed by a medical professional or notarized certification of religious exemption.

W. Va. Code § 16-3-4b

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bryan Cave Leighton Paisner | Attorney Advertising

Written by:

Bryan Cave Leighton Paisner
Contact
more
less

Bryan Cave Leighton Paisner on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.