The Alabama Legislature earlier this month passed Senate Bill 9 in an effort to solidify workers’ rights regarding mandated COVID-19 vaccination, which has since been signed into law by Gov. Kay Ivey.

Vaccine Mandate Issuance

Under the direction of President Joe Biden, various agencies of the federal government earlier this year levied an array of vaccine mandates upon certain workplaces. The decrees included vaccination requirements for federal employees, federal contractors, businesses that employ 100 or more employees, as well as individuals who are employed by Medicare or Medicaid providers.

Senate Bill 9 has no field of operation concerning mandated vaccination for federal employees as it is a state law and only applies to entities under the jurisdiction of the State of Alabama. However, the law does apply to private sector workplaces which were required to fall under vaccination guidelines issued by the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS).

The OSHA rule requiring businesses with 100 or more employees to force vaccination upon their workplaces was recently met with a temporary injunction by the Fifth Circuit Court of Appeals. OSHA has since issued a temporary suspension of rules implementation regarding mandated vaccination.

Senate Bill 9

The bill, sponsored by State Sen. Chris Elliott (R-Daphne), established a pathway for employees to claim exemption from the COVID-19 vaccination for “medical reasons or because of sincerely held religious beliefs.” The law states that employers should “liberally construe” an exemption request in favor of the employee.

The law created a standard exemption form, which employees may complete and submit to their employers. According to the bill’s language, employers are prohibited “from terminating an individual for refusing a vaccine if he or she submits a completed exemption form.”

An employee may claim the following exemptions:

• “My health care provider has recommended to me that I refuse the COVID-19 vaccination based on my current health conditions and medications. (NOTE: You must include a licensed health care provider’s signature on this form to claim this exemption.)”
• “I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.”
• “I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.”
• “I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.”
• “I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the past 90 days.”
• “I have a bleeding disorder or am taking a blood thinner.”
• “I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.”
• “I have been diagnosed with COVID-19 in the past 12 months.”
• “Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.”

Only if the first listed medical exemption is claimed, the employee must have an accompanying signature of a licensed health care provider. Once the employee has submitted the completed form, the law states that the act “creates a presumption that the employee is entitled to the exemption.”

Should an employee’s claimed exemption be denied, the individual has the right to appeal in a seven day time frame to an administrative law judge for the Alabama Department of Labor (ADOL). Once the appeal is received, the judge must issue a ruling on the claim within 30 calendar days.

In the event that an employee’s denial is upheld, the law states that the employee “may file an appeal with a court of competent jurisdiction.”

The law further states, “An employer who has denied an employee’s request may not terminate the employee on the basis of failing to receive a vaccination for a period of 7 calendar days after the denial was issued by the employer, or if an appeal was made, until the administrative law judge or the court issues a final ruling in the employee’s favor.”

Regarding an employee’s request that has been denied, the employer must continue to compensate the worker at the same pay rate for seven calendar days after the claimed exemption was denied. If an appeal was made, compensation must be provided until a final ruling is issued.

Senate Bill 9 specifically notes that it is not the intention of the law to forbid the employer’s right to terminate an employer for reasons other than the employee’s vaccination status. Additionally, the law “does not create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer.”

The legislature opted to have the law repealed on May 1, 2023, with the hope that the COVID-19 pandemic will no longer be an issue of which workplaces must contend with.

Expert Analysis

Concerning the application of Senate Bill 9, Yellowhammer News recently spoke with Robert Lockwood, attorney at Huntsville law firm Wilmer & Lee, P.A., who specializes in matters relating to employment law.

Lockwood recently published a comprehensive analysis providing detailed information regarding the bill’s mechanics.

Federal law provides an avenue for employees seeking medical or religious exemptions to vaccination requirements. However, federal guidelines instruct employers to engage in an “interactive process” in determining the validity of a worker’s claimed exemption.

While Alabama law now requires employers to “liberally construe” such requests, it does not prohibit an employer from conducting further research into the claims.

“Federal law requires employers to grant exemptions to any employee who needs exemption for valid health reasons or sincerely held religious beliefs. That’s clearly established,” advised Lockwood, going on to say that “there is language in each mandate that says that if a employee presents a valid request for exemption, the employer should grant it. The intent of SB9 is allow employees to get their exemptions. Well, that’s what federal law requires anyway. I think what SB9 might be trying to do though is potentially liberalize the basis on which somebody gets an exemption.”

“My federal advice before SB9 was if an employee made a request for exemption that had anything to do with their health, that the employer should ask for a doctor’s note to that effect,” he added. “The form, at least, that the legislature passed with SB9, suggests that you might not need a doctor’s signature for a variety of health-related reasons.”

Lockwood continued, “That’s one of the potential sources of conflict between federal law and SB9… Part of the confusion in these laws is that the federal government hasn’t really said how it’s going to enforce these vaccine mandates, or how it’s going to review exemptions that are granted by employers.”

Concerning how the federal government intends to review such exemptions, Lockwood said it is unclear how it would seek to do so.

“So, we don’t know if the federal government is going to look closely when an employer grants an exemption and say ‘well, you shouldn’t have granted that exemption… that wasn’t a valid health reason.’ We don’t know if the federal government is going to do that or not,” he advised. “So, that’s where the hesitancy is between SB9 and the federal mandate. So, for example, I would think, but I don’t know because we have no guidance, I would think the federal government would want a doctor’s signature to grant a medical exemption. SB9 doesn’t necessarily require that.”

Lockwood went on to note that Senate Bill 9 does not prevent an employer from asking for a doctor’s signature for the other stated medical exemptions. He offered what his advice would be to employers to ensure compliance regarding medical exemptions.

“My advice to employers is that if an employee has a health-related request for an exemption from a vaccine mandate, that the employer should still get a physician’s signature verifying the need for that exemption,” he added.

When asked about potential conflicts between state and federal law, Lockwood indicated that little to no friction exists. However, he did assert that if litigation were to be brought, it would likely be by the federal government.

“I really don’t see much ground to challenge the law. I don’t think employers have any motivations to challenge it,” said Lockwood. “I don’t think the federal government’s going to come in and challenge it because it really does just say ‘follow the law.’ The only potential grounds would be that some federal agency might would say that the Supremacy Clause of the United States Constitution requires state law to yield to federal law.”

Regarding applicable law concerning federal contractors, the employment legal expert suggested that federal government contractors are not necessarily required to ensure their sub-contractors comply with vaccine rules. He did, however, state that it could be in the best interest of such entities to guarantee that they do.

“The mandate does not expressly require checking on sub-contractors to ensure compliance. Now, I know that some federal contractors are doing that, and it might be implied in the mandate but it’s not expressly stated,” Lockwood noted. “The mandate merely says that as a matter of contract you have to flow the mandate down to all sub-contractors. That’s all it says. Implicitly, maybe you should check on your sub-contractors, but it’s not expressed in the mandate.”

Dylan Smith is a staff writer for Yellowhammer News. You can follow him on Twitter @DylanSmithAL