On November 5, 2021, Alabama Governor Kay Ivey signed into law a bill governing COVID-19 vaccine exemption requests.  The law is intended to provide safeguards to employees who refuse an employer-required COVID-19 vaccine, as long as that individual submits a completed exemption form to the employer.  The provisions of the law are immediately effective.  Note that while this bill will likely be preempted by the recent Emergency Temporary Standard from OSHA governing employers with 100 or more employees, the COVID-19 vaccine rule for health care employers from the Centers for Medicare & Medicaid Services (“CMS”), and the COVID-19 guidance for federal contractors, it will still govern private employers in Alabama with fewer than 100 employees that are not covered by the CMS or federal contractor rules.

Vaccine Exemption Form and Process

Any covered Alabama employer that requires an employee to receive a COVID-19 vaccination as a condition of employment is required to provide the employee the opportunity to be exempted from the employer’s vaccination mandate.  The law provides specific text that employers must include on their exemption forms and employees may apply for an exemption based on the following religious or medical reasons:

• The employee’s health care provider recommended that the employee refuse vaccination based on his or her current health conditions and medications;
• The employee has previously suffered a severe allergic reaction related to:
  • Vaccinations;
  • Receiving polyethylene glycol or products containing polyethylene glycol; or
  • Receiving polysorbate or products containing polysorbate;
• The employee has received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the past 90 days;
• The employee has a bleeding disorder and is taking a blood thinner;
• The employee is severely immunocompromised such that receiving the vaccine creates a risk to his or her health;
• The employee has been diagnosed with COVID-19 in the past 12 months; or
• Receiving the vaccine conflicts with the employee’s sincerely-held religious beliefs, practices, or observances.

If the employee falls into one of the categories above and would like to request an exemption, the employee is required to complete an exemption form, sign it, and have it signed by the employee’s health care provider (if applicable for a medical exemption).  Employers are required to liberally construe an employee’s exemption request in favor of the employee and the submission of the completed form to the employer creates a presumption that the employee is entitled to an exemption.

Appeal Process for Employees

The law does not create a private right of action for employees who are terminated after refusing a vaccination mandated by their employer.  In the event an employer denies the employee’s exemption request, the Alabama law sets out very specific appeal procedures.  Once the employer denies the request, the employee has a right to file an appeal with the Alabama Department of Labor (“ADOL”) within 7 calendar days of the denial or 3 business days following the ADOL’s adoption of the rule, whichever is later.  The appeal will be heard by an administrative law judge (“ALJ”) appointed by the Secretary of Labor, who is directed to issue a ruling within 30 calendar days of receiving the appeal.

If the employee’s denial of an exemption is upheld by the ALJ, the employee may file an appeal with a court of competent jurisdiction.  The employee has 14 calendar days from the ALJ’s denial to file this appeal.

The employer is barred from terminating the employee on the basis of failing to receive a vaccine for either: (1) a period of 7 calendar days after the employer issued the denial, or (2) if an appeal was made until the ALJ or the court issues a final ruling in the employer’s favor.  Further, an employer must continue to compensate an employee whose exemption request has been denied at the same rate of compensation the employee received before submitting the exemption form during this timeframe.

Effective Date and Compliance

This law was effective immediately upon Governor Ivey’s signing on November 5, 2021.  The law specifies that it will remain in effect until May 1, 2023, unless extended by an act of the Alabama Legislature.

TAKE ACTION

Employers in Alabama with fewer than 100 employees who are not subject to the CMS or federal contractor rules and who are mandating COVID-19 vaccination should immediately implement the required vaccine exemption form.  These employers should also be prepared to handle the exemption review and appeal process with their employees.