Alabama Tells Workers How to Appeal Vaccine Exemption Request Denials

Alabama Gov. Kay Ivey recently signed into law SB 9, which restricts Alabama employers from requiring COVID-19 vaccination as a condition of employment. SB 9 directs Alabama employers to "exempt vaccination as a condition of employment for any employee who has completed and submitted [an] exemption form" and "liberally construe [an] employee's eligibility for an exemption in favor of the employee."

SB 9 tasked the Alabama Department of Labor with developing an emergency rule establishing a process to allow an employee to submit an appeal of an employer's denial of an exemption request. In response, the Alabama Department of Labor (ALDOL) recently published Chapter 480-9-1-ER, Vaccination Exemption, in the Alabama Administrative Code and launched a website containing links to an exemption form for employees, a poster, and a portal for employees and employers to use to upload certain information.

The emergency rule echoes some provisions of SB 9, including that "Alabama employers may not require any employee to receive a vaccination as a condition of employment without providing the employee the opportunity to be exempted from the vaccination for religious or medical reasons" and that "[t]he employer shall exempt vaccination as a condition of employment for any employee who has properly completed and submitted the exemption claim form." The emergency rule then lists the medical and religious-based exemptions from vaccination.

The emergency rule describes a number of material procedures, including the following:

• If an employer denies a request for exemption, "the employer MUST provide the employee with instructions on how to file a request for administrative review with the [ALDOL] no later than the latter of seven (7) calendar days following the denial of the request for exemption or three (3) business days following the adoption of this administrative rule."
• "Requests for administrative review shall be filed using the Vaccination Exemption Portal https://vaxexemption.alabama.gov."
  
• When requesting administrative review, "the employee shall submit a copy of the denied request form by the employer and must include a valid email address for both the employee and the employer/employer representative."
• The ALDOL will notify the employer of the request for administrative review and "grant them three (3) business days in which to submit any documentation or evidence (including any affidavit from an employer representative) it wishes for the [administrative law judge (ALJ)] to consider in rendering a decision."
• Submissions to the ALDOL are "strictly confidential and not open to public inspection." The emergency rule contains no assurances of how ALDOL intends to safeguard the private, sensitive information submitted by employees and employers.
• "There shall be no live hearings granted by the ALJ" and the ALJ's ruling must be made within 30 calendar days of receiving all documentation submitted. "The ALJ's ruling shall not be required to provide for any findings of facts or conclusions of law."
• If the ALJ upholds the denial of the claim of exemption, "the employee has fourteen (14) calendar days" to appeal "to the circuit court of the county of their residence." Neither SB 9 nor the emergency rule provides an employer the right to appeal an ALJ's decision that is adverse to the employer.

The emergency rule instructs the ALJ during the review of a claim of exemption to confirm the following:

• "The employee has properly selected an appropriate reason for claiming an exemption."
• "The employee has provided an appropriate signature and date indicating that they swear or affirm the request is true and accurate and that they understand that false or misleading information is grounds for discipline, up to and including termination from employment."
• "If the employee makes a claim of exemption based on a health care provider's recommendation to refuse the COVID-19 vaccination based on a current health condition and medication, that the licensed Health Care Provider's name, signature, and date is also provided."

The ALDOL has created the Employee Vaccination Mandate Exemption Portal. The employee portal requires an employee to provide personal identifying information, such as a Social Security number, email address, and phone number, and select the type of exemption requested. It also requires the employee to upload a copy of the denied Vaccination Exemption Claim Form that must include an official email address of the employer and "any additional documentation or evidence … for the administrative law judge to consider in their review." The employee also must certify that all information submitted is true and accurate and acknowledge that providing false or misleading information is "grounds for discipline, up to and including termination from employment."

Employers must use the Employer Vaccination Mandate Exemption Portal to respond to an appeal filed by an employee. The employer portal allows for the upload of copies of "any documentation or evidence … for the administrative law judge to consider in their review of [the] employee's denied vaccination exemption claim."

Key Takeaways

The ALDOL emergency rule and website contain important information for employers to consider when evaluating or applying mandatory vaccination policies impacting Alabama-based employees, including information regarding required notices and documentation, the timing of an ALJ's review, and factors that an ALJ will consider during the exemption claim review process.

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