It is May 6, 2022, and high time for an update on the law of employer-imposed covid vaccine mandates. There have been some changes since I last addressed this issue in August 2021. As predicted, the courts have proven hostile to employee challenges to private employer mandates. Medical exemptions have been restricted to a very small list of conditions. Concerning religious exemptions, although they are enshrined in federal law, the de minimis burden and rational basis tests are still in place, which limits their practical value for employees.
But there have been some changes in state law. Over a dozen states have passed laws limiting employer mandates. Today I will discuss private sector employees in the two states of greatest interest to our firm: Mississippi and Indiana. Government employees will be addressed separately.
Indiana: HB 1001
Effective March 2022, HB 1001 in Indiana creates a new statory provision, IC 22-5-4.6, which makes significant changes in what is allowed in an employer vaccine mandate. Though it allows mandates, it requires exemptions - the most important one being the exemption for those who have natural immunity from a prior covid infection.
First, though, a few words on coverage. The statute does not protect employees working out-of-state for Indiana employers. It does not protect Indiana employees working for most health-care employers, or federal government contractors who can prove they are subject to a federal mandate. It also does not protect employees working in pro-sports or the entertainment industry.
Other than that, however, the law applies broadly. It protects full-time and part-time employees, volunteers, interns, and even independent contractors. It applies to even the smallest companies, including those with, for example, only one part-time independent contractor.
It requires that any vaccine mandate must allow an employee to
medical reasons, religious reasons, [or because] an employee has immunity from COVID-19 acquired from a prior infection with COVID-19. However, the employer can require real proof for these exemptions.
Let's start with the medical issues. For the medical exemption, this means a professional opinion that the vaccine is medically contraindicated from a professional who has personally examined the employee. The naturally acquired immunity exemption requires proof in the form of a medical test result showing that the employee had covid or has antibodies to covid. But the law is very clear that once the employee satisfies these proof requirements, the employer is not entitled to investigate further, and must grant the exemption.
The religious exemption is different. It does not require supporting statements from a religious authority, and only requires a written statement of the sincerely held religious belief. However, it does not grant an automatic exemption either. Instead, the law incorporates the standards and procedures of Title VII. Which means, as we talked about previously, that the employer can inquire further as to the basis for the religious belief and can also deny exemptions where there is a
de minimis burden under current law.
Finally, the employer can also require up to bi-weekly covid testing for employees with any form of exemption.
Mississippi: HB 1509
Effective late-April 2022, HB 1509 in Mississippi requires a religious exemption for any vaccine mandate. The relevant language in the statute is short and simple, stating in toto:
An employee of any public or private employer who has a sincerely held religious objection to receiving a vaccine for COVID-19 shall not be required to receive a vaccine for COVID-19. This is likely broader than the religious exemption in Indiana because it does not incorporate Title VII's limitations, it does not consider the burden on the employer, and it does not include a
direct threat defense.
But it also does not create a cause of action explicitly. I think the employee may have a tort or contract claim for wrongful termination under Mississippi caselaw, but that is an issue that will have to be resolved in litigation.
Today, active covid infection and transmission numbers have declined dramatically, and we appear to be entering an
endemic stage where covid flare-ups and constant low-level background circulation is (like flu and cold viruses) just a part of our lives. If so, then the sense of emergency, of
direct threat can and should be fading away as well. This will make the legal environment far more hostile to extraordinary covid measures by employers (or government).
To sum it all up, the legal and practical landscape has changed dramatically since last fall. Covid vaccine cases will probably have more legs in today's environment, and it is reasonable to expect that these cases will get a real hearing in court.
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