State law allows COVID-19 vaccine exemption for employees; State creates vaccine exemption portal

In its early November special session, the Alabama Legislature approved, and the governor signed into law, legislation mandating ALL Alabama employers who require COVID-19 vaccinations to allow employees to claim an exemption for medical reasons or sincerely held religious beliefs.

The law was effective Nov. 5, 2021, and unless extended by the Legislature ends May 1, 2023. The law applies to employer created mandatory COVID-19 vaccination policies as well those required of Alabama employers by the federal government.

Act No. 2021-561 by Sen. Chris Elliott, R-Daphne, says employers “shall” exempt an employee from COVID-19 vaccination as a condition of employment, IF the employee completes and submits a standardized state exemption form, which the law created. To request an exemption, employees simply check one of eight medical reasons listed or claim the single religious belief option.

Alabama Department of Labor Vaccination Exemption Information Portal
(Includes Exemption Form, Instructions for Claiming Exemption Poster, Employer and Employee Upload Portals)

The religious belief exemption and all but one of the medical exemptions are self-certified by the employee, depriving employers of rights under federal law to seek substantiation or ask follow-up questions about requested religious and medical accommodations.

Two other provisions in the law make it unclear if submission of the form results in an automatic or a presumptive exemption. The law states the employer shall “liberally construe the employee’s eligibility for an exemption in favor of the employee, consistent with applicable law.” The other provision states that the “submission of the completed form creates a presumption that the employee is entitled to the exemption.”

The Alabama law allows employees denied the exemption to appeal to an administrative law judge assigned by the Department of Labor. On Nov. 18, the Alabama Labor Department adopted an emergency rule establishing the appeals process. The information portal linked above is based on that rule. Employees denied an exemption could begin appeals within three days of the rule’s adoption.

Chapter 480-9-1 Emergency Rule Vaccine Exemptions

During the appeal process, employers must continue to compensate the denied employee at the same rate of pay for up to 37 days: the employee has seven days to file an appeal and the administrative law judge has 30 days to rule.

The act does not prevent an employer from terminating an employee for reasons other than vaccination status, and it specifically states that it does not create or imply any private cause of action for employees terminated after refusing an employer-required vaccination.

Federal Mandates
On Thursday, Jan. 13, the U.S. Supreme Court blocked enforcement of the federal COVID-19 vaccination or testing mandate for employers with 100 or more employees. In a separate ruling, the court allowed a similar nationwide mandate for Medicaid- and Medicare-certified healthcare facilities to go forward. The state of Alabama had challenged both of those mandates.

About a dozen states, including Alabama, also filed lawsuits challenging the federal contractor mandate. On Dec. 7, a U.S. district judge in Georgia temporarily blocked that mandate nationwide while those lawsuits play out. That case has not yet reached the Supreme Court.

Alabama employers subject to any federal vaccination rule should consult with counsel to determine whether or not the Alabama law and the applicable federal vaccination rule are in conflict, Alabama Retail’s employment law partner, Lehr Middlebrooks Vreeland & Thompson, advises. All Alabama employers should review forms and practices used to handle medical and religious accommodation requests and consider whether or not to discontinue use of those forms in favor of the Alabama Legislature’s form when the accommodation sought is a COVID-19 vaccination exemption, LMVT said.

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Originally posted 1:37 p.m. Nov. 8, 2021; last updated at 2 p.m. Jan. 13, 2022