On November 5, 2021, Alabama signed into law Senate Bill (SB) 9, that would expressly prohibit all employers within the state from requiring employees to obtain a COVID-19 vaccine as a condition of employment. SB 9 took effect immediately and would require that employers allow the opportunity for employees to request an exemption from a vaccine mandate. The law also prohibits employers from being able to take consequential action against an individual that requests an exemption during the periods of consideration and/or denial of an exemption request. Further, if a request is denied, the law allows employees to appeal to the state.
Requests for Exemption
For employees to request an exemption from vaccination, they must complete the form drafted by the Alabama Department of Labor (DOL) or complete an employer-provided document that speaks to the standard language requesting the exemption as specified in the statute. Specifically, an employee can request exemption for one or more of the following reasons:
- “My health care provider has recommended to me that I refuse the COVID-19 vaccination based on my current health conditions and medications. (Note: 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.”
Once the exemption form has been submitted to the employer, this would create the presumption that the employee is entitled to the exemption. However, if an employer denies the request, employees are granted a seven-calendar day period, from the date of the employer’s denial, to appeal the decision to an administrative law judge. The administrative law judge must then 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.
If an employee appeals their employer’s decision, most employers will believe that because the employee is away and not performing any work, that they will not need to be compensated in anyway. However, SB 9 aims to combat this principal by requiring those employers who deny an exemption request, to continue to compensate the employee, at their regular rate of pay, for a period of seven-calendar days after the denial was issued by the employer, or if an appeal was made, until the administrative law judge issues a ruling in the employer’s favor.
The DOL 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 which 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.”
Next Steps for Employers
With the Federal Occupational Safety and Health Administration ETS currently awaiting a decision from the Sixth Circuit Court of Appeals it is difficult to determine how SB 9 will contradict the ETS. Employers are encouraged to seek assistance from their legal counsel regarding any questions/concerns regarding compliance.