Alabama has joined an ever-increasing number of states that have passed laws aimed at countering the federal government’s COVID-19 vaccination mandate. Alabama Senate Bill 9 restricts Alabama employers from requiring COVID-19 vaccinations “as a condition of employment for any employee who has completed and submitted [an] exemption form.” The legislation was signed into law on November 5, 2021, and took effect immediately. It will expire on May 1, 2023.
Specifically, the law provides that employers must make exemption forms “readily available to all employees” and instructs employers to “liberally construe the employee’s eligibility for an exemption in favor of the employee. The law provides the exemption form that employers must use. A copy of this form can be accessed here. Notably, the “submission of the completed form creates a presumption that the employee is entitled to the exemption.”
If an employee’s request is denied, the law gives employees seven days to file an appeal. An employee whose exemption request is denied may not be terminated on the basis of failing to receive a vaccination for a period of 7 days or until a final ruling is made in the employer’s favor. Employers are also required to “compensate an employee whose request has been denied, at the same rate of compensation the employee received prior to submitting an exemption form” for a period of at least seven days or until a final ruling is made in the employer’s favor. Importantly, the law does not create a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer. The law also does not hinder the employer’s ability to “terminate an employee for reasons other than the employee’s COVID-19 vaccination status.”
In addition to this law, Alabama joined Florida and Georgia in an action filed in the Eleventh Circuit challenging OSHA’s Emergency Temporary Standard (“ETS”), otherwise known as the federal vaccine mandate. While that case remains pending, the Fifth Circuit issued a temporary injunction enjoining enforcement of the ETS due to “serious constitutional concerns.” In response, OSHA issued a statement that it was suspending “activities related to the implementation and enforcement of the ETS.”
To date, lawsuits regarding the ETS have been filed in several federal appeals courts. As a result, on November 16, 2021, the Sixth Circuit was selected via lottery to hear legal challenges to the ETS. Although the Sixth Circuit will have the opportunity to resolve the pending disputes, any ruling is expected to be appealed to the United States Supreme Court. In yet another pandemic hurdle for employers, finality on the vaccine mandate issue is likely far from reach.