States limit employer’s power to demand the hit Jobs and HR

United States: States limit employer’s power to demand the blow

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With OSHA’s COVID vaccination mandate now upheld (almost certainly forever) and the vaccination mandate for government contractors also upheld (likely forever), US employers must decide whether or not to impose their own COVID vaccination mandates to employees. And state laws will have something to say about it.

The table below summarizes current state laws that restrict a private sector employer’s ability to impose a COVID vaccination mandate on their 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 the disability or an honest religious belief in disability. absence of undue hardship.

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

State Summary of Vaccination Exemption Quote
Alabama Emergencies cannot require EE to be vaccinated as a condition of employment without allowing EE to claim religious and medical reasons. Eligibility for the exemption must be “liberally construed”. EE’s submission of the Universal Application Form (available here) creates a presumption that the EE is eligible for the exemption. Law 2021-561
Arizona If an ER has received notice from EE that EE’s sincere religious beliefs preclude him or her from taking the vaccine, ER must provide reasonable accommodation unless the accommodation would pose undue hardship and more than a cost of minimis for RE. ARS § 23-206
Arkansas Emergencies must allow EEs to opt out of vaccine requirements if they are tested weekly or can prove they have antibodies to the virus. AAC § 11-5-118

ER cannot impose a vaccination mandate unless EE can 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 sincere belief
  3. Immunity based on prior COVID-19 infection, documented by laboratory 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 the use of PPE provided by the employer
FSA § 381.00317
Illinois Illinois law prohibits ERs from discriminating against EEs who object to health care services because of their personal conscience. Under this law, Illinois courts have barred the enforcement of ER vaccination warrants against EEs with conscientious objection. Illinois recently passed SB 1169, which amends the law to clarify that it does not apply to ER vaccine warrants. The amendment is not effective until June 1, 2022. Thus, emergencies should proceed with caution until June 1, 2022.

745 ILCS 70/7

SB 1169

Iowa ER will waive any requirement for a vaccine if the EE submits to ER: (1) a statement that receiving a vaccine would be detrimental to the health and well-being of the EE, or (2) a statement that receiving the vaccine would be contrary to the principles and practices of a religion of which the employee is an adherent or member. ICA § 94.2

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

  1. Endanger the life of EE, as signed by the doctor
  2. Violate EE’s sincere religious beliefs, as signed by EE.
HB 2001

It is illegal for an emergency room to refuse employment, exclude a person from employment, or discriminate against a person for compensation or in any term, condition, or privilege of employment based on the person’s immunization status. person or if the person has an immunity passport.

A person cannot be required to receive a vaccine that is authorized for use under an emergency use authorization or a vaccine that is undergoing safety trials

MCM 49-2-312
North Dakota Individuals are exempt from any employer vaccination requirements if they show evidence of COVID-19 antibodies, have a medical condition, have a religious, philosophical or moral belief opposing vaccination, or submit to periodic COVID-19 tests. NDCC § 34-03-10
Tennessee ER shall not coerce or take other adverse action against a person to compel that person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason. Adverse action includes any discrimination against a person by denying them employment; or terminate, threaten or discriminate against an employee in any way that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions or privileges. TCA § 14-2-102
Texas Executive order prohibiting all entities, including private companies, from forcing receipt of a COVID-19 vaccine on any person, including an employee or consumer, who objects to such vaccination for any reason. personal conscience, based on religious belief, or for medical reasons, including prior recovery from COVID-19. Executive Order No. GA-40

ER will exempt EE from any vaccine requirements if EE submits a statement that the vaccine:

  1. be detrimental to the health and well-being of the EE;
  2. conflict with a sincere religious belief, practice or observance of EE; Where
  3. conflict with a sincere personal belief in EE.
UCA § 26-68-201
West Virginia ER must exempt EE from the vaccination requirement upon presentation of a medical exemption certificate signed by a medical professional or a notarized certificate of religious exemption. W.Va. Code § 16-3-4b

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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