States Limit Employer Power to Require the Jab
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.
Summary of Vaccination Exemption
Employers may not require employee to be vaccinated as condition of employment without allowing employee to claim religious and medical reasons. Exemption eligibility must be “liberally construed.” Employee’s submission of the universal request form (available here) creates a presumption employee is eligible for exemption.
If an employer received notice from employee that employee’s sincerely held religious beliefs prevent the employee from taking vaccine, employer shall provide a reasonable accommodation unless the accommodation would pose an undue hardship and more than a de minimis cost to the employer.
Employers must allow employees to opt out of vaccine requirements if they’re tested weekly or can prove that they have antibodies for the virus.
Employer may not impose a vaccine mandate unless employee may opt out based on:
- Medical reasons, as determined by a physician, advanced practice registered nurse (APRN) or physician assistant (PA). Medical reasons include pregnancy or expectation of pregnancy.
- Religious reasons, based on a sincerely held belief
- Immunity based on prior COVID-19 infection, as documented by a lab test
- Periodic testing, agreeing to comply with regular testing at no cost to the employee
- Personal protective equipment (PPE), agreeing to comply with use of employer-provided PPE
Illinois law prohibits employers from discriminating against employees who object to health care services based on personal conscience. Under this law, Illinois courts have prohibited enforcement of employer vaccine mandates against employees with a conscience objection. Illinois recently passed SB 1169, which amends the Act to clarify that it does not apply to employer vaccine mandates. The amendment is not effective until June 1, 2022. Thus, employer’s should proceed with caution until June 1, 2022.
Employers shall waive any vaccine requirement if the employee submits to employer:
(1) a statement that receiving a vaccine would be injurious to the employee’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.
If employer implements vaccine requirement, employer shall exempt employee if employee submits a written statement stating that such a requirement would:
1 Endanger employee’s life, as signed by physician
2 Violate sincerely held religious beliefs of employee, as signed by the employee.
It is unlawful for an employer 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
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.
Employers 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.
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.
Employers shall relieve employee of vaccine any requirement if employee submits statement that vaccine would:
- be injurious to the health and well-being of the employee;
- conflict with a sincerely held religious belief, practice, or observance of the employee; or
- conflict with a sincerely held personal belief of the employee.
Employers must exempt employees from vaccination requirement upon the presentation of a certification of medical exemption signed by a medical professional or notarized certification of religious exemption.
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