Take That Shot And Shove It! Some States Continue To Push Vaccine Exemptions

Officials across the U.S. tried different approaches in the past year to increase COVID-19 vaccination rates, seeking to blunt the spread of variants and preserve hospital capacity. For example, officials launched incentive programs, stressed personal responsibility, and deployed mobile vaccination units to encourage vaccine uptake. As we have previously detailed, many federal, state, and local officials ultimately mandated that certain types of workers receive the COVID-19 vaccine.

While various jurisdictions embraced vaccination mandates of one type or another, numerous states took the opposite approach, adopting new laws intended to curtail workplace vaccine mandates. A couple of states, Montana and Tennessee, sought to ban such mandates entirely. Others enacted laws that may not preclude private employers from requiring employee vaccinations but, rather, impose specific limitations on any such programs. For example, several states enacted laws that require private employers to offer expanded exemption options for employees who do not wish to be vaccinated for various reasons.

As we watch to see what happens with additional pending legislation in 2022, this post identifies where such laws have been adopted to date¹:

• Alabama (limitations imposed by legislation effective 11/5/21, and implemented by emergency rules; website here)
• Arkansas (limitations imposed by legislation effective 1/13/22)
• Florida (limitations imposed by legislation effective 11/18/21, and implemented by emergency rules; FAQs here)
• Iowa (limitations imposed by legislation effective 10/29/21)
• Indiana (limitations imposed by legislation effective 3/3/22)
• Kansas (limitations imposed by legislation effective 11/23/21)
• Montana (ban imposed by legislation effective 5/7/21, and addressed by FAQs)
• Nebraska (limitations imposed by legislation  effective 3/1/22)
• North Dakota (limitations imposed by legislation effective 11/15/21)
• Tennessee (ban imposed by legislation effective 11/12/21)
• Tennessee (further limitations imposed by legislation effective 3/11/22)
• Texas (limitations imposed by executive order effective 10/11/21)
• Utah (limitations imposed by legislation effective 11/16/21)
• West Virginia (limitations imposed by legislation effective 1/20/22)

Employers with operations in these jurisdictions should bear in mind that any operable federal mandates - such as the rule issued by the Centers for Medicare and Medicaid Services applicable in certain healthcare settings - may preempt conflicting state law. Given the complexity and evolving nature of this issue, employers should consult with knowledgeable counsel for guidance on specific vaccine-related legal questions and the latest developments.

Footnote

1 This list of states that have taken action to curtail vaccination programs does not  cover state measures directed at public sector employers (state and local entities or agencies, etc.).