Efforts to Craft National Vaccination Policies Complicated by Patchwork Legislation

By Caroline Burnett, Susan F. Eandi & Robin Samuel on March 24, 2021

Posted in Accommodations & Leave Law, Coronavirus, Discrimination & Retaliation, US

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Employers are busy putting together return-to-work plans and deciding whether they should mandate employee vaccination or simply encourage it. Before creating a uniform vaccination policy, it’s imperative to understand the legislative landscape in each jurisdiction where the employer operates, especially regarding the freedom to mandate vaccines, require proof of vaccination, etc.

While most employers will not be surprised to hear that mandatory vaccination is permitted under the ADA, except for employees with disabilities or sincerely-held religious beliefs, a recent surge in state legislation may call this general rule into question. This pending legislation varies from requiring employers to use government-approved vaccines to outright bans of any consideration of vaccination status, as summarized below. (This information is current as of March 24, 2021.)

States with new or preexisting legislation prohibiting mandating vaccinations	Legislation	Brief Summary
New Jersey	N.J.S.A. 10:5-1	The New Jersey Law Against Discrimination prohibits employers from mandating anything that would require the employee to violate or forego a sincerely held religious belief.
North Carolina	NC Gen Stat § 95-130	Under the North Carolina Occupational Safety and Health Act, employers are not authorized to mandate immunization for religious objectors, except where it is necessary for the protection of the health or safety of others.
Oregon	ORS 433.416	Oregon law prohibits employers from requiring vaccinations as a condition of employment for healthcare workers, unless the vaccination is otherwise required by federal or state law, rule or regulation.
Utah	HB 308	Prohibits governmental entities from requiring an individual to receive a COVID-19 vaccine.
States with pending prohibitions on mandatory vaccines and/or requiring vaccination status disclosure	Legislation	Brief Summary
Arizona	SB 1648	Would prohibit individuals and entities from requiring persons to take, be administered or otherwise receive or disclose whether they have taken, been administered or otherwise received a COVID-19 vaccine as a condition of employment.
Connecticut	H.B. No. 5402	Would prohibit employers and public officials from requiring proof of COVID-19 vaccination.
Georgia	HB 413	Would bar any employer, school, government official or law from requiring someone to get a vaccination unless it meets certain criteria.
Illinois	HB 3862	Would prohibit employers from creating, implementing or enforcing a workplace vaccination program that requires any employee to demonstrate that they have received a COVID-19 vaccine.
Indiana	SB 74; HB 1488	SB 74 would prohibit employers from requiring, as a condition of employment, employees or prospective employees to receive any immunization if it is medically contraindicated for the employee or against their religious beliefs or conscience; HB 1488 would prohibit employers from requiring, as a condition of employment, that employees or prospective employees receive immunizations that have been approved for emergency use and that lack full approval from the FDA. The Bill would further prohibit employers from inquiring about or requiring employees or prospective employees to disclose the reason(s) for refusing such an immunization.
Kentucky	SB 98	Senate Bill 98 would prohibit employers from requiring immunization as a condition of employment or discriminating against individuals who decline immunization for any reason.
Maryland	HB 1171	House Bill 1171 would prohibit an employer from terminating an employee for refusing the COVID-19 vaccine.
Missouri	HB 838	House Bill 838 would prohibit any public employer from requiring any public employee to receive a COVID-19 vaccination. The Bill would also prohibit a political subdivision from adopting any ordinance, rule or regulation requiring a public employer to implement a policy mandating COVID-19 vaccinations for public employees.
New York	NY AO4602	Assembly Bill 4602 prohibits required vaccination for the purpose of inducing immunity against COVID-19 as a requirement for employment or continued employment.
Oklahoma	SB 765	Senate Bill 765 would prohibit employers from requiring employees or applicants for employment to submit to a COVID-19 vaccination as a condition of employment or continued employment. Employers who recommend that their employees or applicants for employment take a COVID-19 vaccination would be required to pay for the cost of the vaccination.
Washington	HB 1305; HB 1065	House Bill 1305 would prohibit employers from requiring employees to get a COVID-19 vaccination as a condition of employment; House Bill 1065 would prohibit public and private employers from requiring the COVID-19 vaccine as a condition of employment, unless the vaccine meets certain standards including, but not limited to, licensed for use by the FDA, has undergone various testing regarding long-term effects and is proven to prevent person-to-person transmission of COVID-19. The Bill would also prohibit employers from requiring the COVID-19 vaccination as a condition of employment, where an employee has a medical, philosophical or religious objection to the vaccine.
States with pending anti-discrimination legislation	Legislation	Brief Summary
Alabama	HB 214	Would “prohibit employers from taking adverse action against employees or prospective employees based on immunization status.”
Colorado	HB 21-1191	Would prohibit an employer, including a licensed health facility, from taking adverse action against an employee or an applicant for employment based on the employee’s or applicant’s COVID-19 immunization status.
Iowa	2021 IA H 330; Senate File 193	House File 330 and Senate File 193 would prohibit employers from refusing to hire, discharging, penalizing or otherwise discriminating against employees with respect to compensation or the terms, conditions or privileges of employment based on vaccination history, refusal to receive a vaccine or failure to provide proof of immunity. The protections would allow employees to decline vaccination for any reason, not just religious or medical objections to vaccination.
Kansas	SB 213	Would prohibit employers from taking adverse action against employees who refuse to get the COVID-19 vaccine.
Minnesota	HF 41	The Bill would further bar the government and businesses operating in the state from discriminating against an individual based on immunization status and from requiring proof of vaccination to enter into buildings open to the public. Violation of the Bill’s anti-discrimination provision could result in a felony charge with a minimum of 10 years in prison.
Montana	SB 132	Senate Bill 132 would require that accommodations to employer-mandated vaccination be uniformly applied. If an employer requires employees to be vaccinated but offers alternatives (e.g., religious exemptions) to certain employees, those alternatives must be offered to all employees
Ohio	HB 268	House Bill 268 would prohibit an employer from taking an adverse action against an unvaccinated employee.
Pennsylvania	HB 262	House Bill 262 would prohibit employers from discharging, refusing to hire, threatening or otherwise discriminating or retaliating against employees or prospective employees who refuse to participate in an employer-required vaccination or an invasive medical test.
Rhode Island	HB 5989	House Bill 5989 would prohibit discrimination with respect to employment, public accommodations, and credit against individuals who refuse to be vaccinated or show proof of vaccination.
South Carolina	Bill 3511	Bill 3511 would prohibit employers from taking any adverse action including, but not limited to, termination, suspension, involuntary reassignment or demotion against employees who refuse the COVID-19 vaccine.
Tennessee	HB 1269; SB 564	Would create a civil cause of action for discrimination based on COVID-19 vaccine status.
Texas	HB 1687	Would prohibit employment discrimination based on an employee’s vaccine status.
Virginia	HB 2242	Prohibits the State Health Commissioner and the Board of Health, the Board of Behavioral Health and Developmental Services, the Department of Health Professions and any regulatory board therein, and the Department of Social Services from requiring any person to undergo vaccination for COVID-19 and prohibits discrimination based on a person’s vaccination status with respect to any COVID-19 vaccine (i) with regard to education, employment, insurance, or issuance of a driver’s license or other state identification or (ii) in numerous other contexts.