Alabama Governor Kay Ivey has not been shy about her opposition to any vaccine mandates, whether that opposition conflicts with federal law or not. In another act to further her opposition, on November 5, 2021, she signed into law Senate Bill 9 (“SB 9”), which bolsters an Alabama employee’s right to request an exemption to any COVID-19 vaccination mandate. The law immediately went into effect and will expire May 1, 2023. It applies to all Alabama employers.
Specifically, the law prohibits employers from requiring any employee to receive a COVID-19 vaccination as a condition of employment unless the employee is provided the opportunity to be exempt from the vaccination for religious or medical reasons. (The law does not address an employer’s ability to require weekly testing for COVID-19, which is an option under the OSHA rule for large employers.) The law explicitly states, “The employer shall evaluate the request and liberally construe the employee’s eligibility for exemption in favor of the employee” and “[t]he submission of the completed form creates a presumption that the employee is entitled to the exemption.” According to this state law, any employer requiring vaccinations must provide employees access to a universal exemption request form. Finally, in accordance with the law, the Alabama Department of Labor (ADOL) has now established procedures for an employee to appeal any denial of an exemption to an administrative law judge. The ADOL’s exemption form, poster, and appeals portal can be found here: https://vaxexemption.alabama.gov/
In short, here is what you need to know about the required process:
- Employers are to make the universal exemption form readily available to all employees, along with instructions for submitting the form.
- Employees are to return the completed forms to the employer and the forms should be maintained in a confidential employee file.
- Employers should “liberally” construe the request and either approve or deny it. If the request is denied, employers are to provide the employee with instructions on how to request an administrative review.
- If the employee submits the denied form to the administrative law judge for review via the portal, the judge will issue a ruling within 30 days.
- Once a review application is received, the employer will receive notice via email and will have 3 business days to submit any pertinent information.
Notably, if an employee appeals an exemption denial, the law requires an employer to compensate that employee at his/her regular rate of compensation for either (1) 7 days after the denial was issued by the employer OR (2) if a request for review is made, until the administrative law judge issues a ruling in the employer’s favor (no more than 30 additional calendar days). The ADOL guidelines state, “While the decision to keep an employee physically on the job during this period is at the discretion of the employer, compliance regarding compensation is mandatory.” Also, if a request is denied, an employer cannot terminate an employee for failing to receive a vaccination for a period of 7 calendar days after the denial or, if a request for review was made, until the administrative law judge issues a ruling in the employer’s favor.
So what does all of this mean in light of the federal mandates? Simply put, it means only more confusion for Alabama employers. States are certainly allowed to enact laws related to vaccinations but only to the extent they do not conflict with federal law. That is the case here. Several of the medical categories for exemption on the universal form (e.g., the receipt of monoclonal antibodies or a recent COVID-19 diagnosis) directly conflict with the federal mandates and CDC guidance.
However, as you may know, the OSHA vaccine mandate rule for large employers has been stayed and will remain that way at least through December 10, 2021, at which time the Sixth Circuit Court of Appeals will consider the matter. The deliberate pace at which the litigation is proceeding – with the briefing deadline set after the first deadline in the rule – calls into question whether there will even be time for the six-month emergency rule to take effect. It is set to expire in May 2022. We will know more after the Sixth Circuit rules.
In addition, on Monday, a federal court in Missouri blocked the CMS rule for healthcare workers from taking effect in 10 states. Then, just yesterday, a federal court in Louisiana blocked the CMS rule for healthcare workers from taking effect in the remaining states, making the stay nationwide. The CMS rule will now be on a similar course as the OSHA rule but is stayed until a final decision is made. CMS has already appealed the injunction in the Missouri case, and we expect it will appeal the Louisiana decision soon. As a result, there is some uncertainty as to whether the injunctions will be upheld. In the meantime, the best plan for healthcare employers is to continue operating as though the mandate will remain in effect. The appeals courts are likely to rule quickly given the impending deadlines in the CMS rule, and if the stay is lifted, employers will need to be ready to comply. For now, the only federal vaccine mandate that remains in effect in Alabama is the one covering federal contractors/subcontractors.
Given the current stays of the federal rules for healthcare providers and large employers, those employers should focus on complying with this new state law, to the extent they mandate vaccines for employees. Should the stays be lifted, it will be critical that employers are careful to comply with all laws to the fullest extent possible, with the first focus being on complying with the federal laws. This is obviously no easy task, and we are here to help. We will continue to monitor the status of the federal mandates and legal challenges and update you should the status change.
Written by: Breanna Young
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