As you likely know, the federal government has taken steps to impose vaccine mandates on (a) employers with over 100 employees, (b) federal contractors and (c) healthcare workers. Some private employers have also opted to impose vaccine mandates on their employees. In response, a number of states and individual employers have filed lawsuits challenging the federal mandates. Currently (as of December 1, 2021), federal courts have temporarily put both the large employer requirement and the healthcare worker requirement on hold nationwide, and the federal contractor mandate has been put on hold in three states.
In addition, a number of states have passed legislation prohibiting the imposition of such employee mandates and/or requiring certain exemptions be provided to employees who choose not to be vaccinated. Thus, employers currently face multiple obligations and/or restrictions creating potential compliance hurdles and confusion around employee vaccine mandates.
For example, Alabama, Arkansas, Florida, and North Dakota, have recently passed legislation prohibiting employers from imposing vaccine mandates on their employees and/or requiring that employers provide employees with multiple exemptions from vaccination policies. The exemptions permitted include not only employer obligations to consider accommodations for disabilities or sincerely held religious beliefs as required under federal and state anti-discrimination laws, but testing options, providing evidence of antibodies, or holding objections not necessarily grounded in religion. The number and nature of the potential exemptions vary in each law.
Tennessee has recently passed a law that prohibits employers from taking “adverse action” against employees who refuse to provide proof of vaccination. Montana’s Human Rights Act prohibits employment discrimination based on an individual’s vaccination status.
Legislation is pending in other states as well that would prohibit vaccine requirements for employment or would allow employees to object to vaccine mandates on religious, medical, or other grounds not included in the federal mandates. While not all of the proposed legislation will ever see a legislative vote, this adds another layer of uncertainty for employers.
It is not unusual for employers to be subject to conflicting federal and state requirements – but the current situation involves particularly trickly conditions for employers to navigate. This is especially so if your business has employees in multiple states. Employers should take steps now to ensure that they understand their potentially overlapping obligations, especially if the company has already implemented vaccine mandates.