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 |
| Florida |
ER cannot impose a vaccination mandate unless EE can opt out based on:
|
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 |
| Kansas |
If ER implements the vaccine requirement, ER shall exempt EE if EE submits a written statement that such a requirement:
|
HB 2001 |
| Montana |
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 |
| Utah |
ER will exempt EE from any vaccine requirements if EE submits a statement that the vaccine:
|
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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