Alabama Law Creates More Exemptions from Mandatory Vaccination Policies

​On Nov. 5, Alabama Gov. Kay Ivey signed into law SB 9, restricting Alabama employers from requiring COVID-19 vaccination as a condition of employment. Ivey announced, "[A]s long as I am your governor, the state of Alabama will not force anyone to take the COVID-19 vaccine."

SB 9, which took effect immediately, requires Alabama employers to "exempt vaccination as a condition of employment for any employee who has completed and submitted [an] exemption form" and instructs Alabama employers to "liberally construe [an] employee's eligibility for an exemption in favor of the employee." The law will expire on May 1, 2023.

The pro-employee law specifically states that the submission of a completed exemption form "creates a presumption that the employee is entitled to the exemption." Under SB 9, Alabama employers must use an exemption form drafted by the Alabama Legislature that sets forth the following exemptions:

• "My health care provider has recommended to me that I refuse the COVID-19 vaccination based on my current health conditions and medications. (NOTE: You must include a licensed health care provider's signature on this form to claim this exemption.)"
• "I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past."
• "I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol."
• "I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate."
• "I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the past 90 days."
• "I have a bleeding disorder or am taking a blood thinner."
• "I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health."
• "I have been diagnosed with COVID-19 in the past 12 months."
• "Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances."

Notably, several of the exemptions listed on the form do not comport with guidance issued by the Safer Federal Workforce Task Force that is binding on some federal contractors and subcontractors, the vaccine mandate for medical facilities issued by the Centers for Medicare and Medicaid Services, and parts of the Occupational Safety and Health Administration's (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees. The form's exemptions also appear to conflict with guidance from the U.S. Centers for Disease Control and Prevention on COVID-19 vaccinations.

SB 9 requires the Alabama Department of Labor to establish by Nov. 26 procedures to consider an employer's denial of an exemption request. The law provides an employee seven calendar days from an employer's denial to appeal the decision to an administrative law judge. The administrative law judge must issue a ruling within 30 calendar days of receiving an appeal. If the administrative law judge upholds an employer's denial of an employee's exemption request, within 14 calendar days of the ruling, the employee may file an appeal with a court of competent jurisdiction.

An employer that has denied an employee's exemption request "may not terminate the employee on the basis of failing to receive a vaccination for a period of 7 calendar days after the denial …, or if an appeal was made, until the administrative law judge or the court issues a final ruling in the employer's favor." The "employer must compensate an employee whose request has been denied" during the seven-day period after the denial and during the pendency of any appeal.

Notably, the new law does not restrict an employer's ability to "terminate an employee for reasons other than the employee's COVID-19 vaccination status" and "does not create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer." Unlike the OSHA ETS, the new Alabama law applies to Alabama employers of any size, including those with fewer than 100 employees.

Key Takeaways

This new law comes at a time when many Alabama employers are evaluating plans to comply with various aspects of President Joe Biden's COVID-19 Action Plan, including vaccine mandates for federal contractors and the recently issued federal vaccination and testing ETS, as well as the legal challenges to these mandates. The new law adds an additional wrinkle for employers with Alabama employees.

Josh C. Harrison and T. Scott Kelly are attorneys with Ogletree Deakins in Birmingham, Ala. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.