On April 25, 2022, Governor Henry McMaster signed bill H.3126 into law in an effort to signal the state's continued opposition to any mandated COVID-19 vaccination requirement. The new law prohibits the state, political subdivisions of the state, and private employers from discriminating against an individual on the basis of their vaccination status. Specifically, the Act prohibits public  employers from imposing a vaccine mandate (albeit federal regulations may preempt that prohibition), but it does not  prohibit private  employers from imposing such mandates. Rather than eliminating the ability of private employers to issue mandates, the Act instead provides that any employees suffering an adverse employment action from refusing to abide by a private employer mandate may receive unemployment benefits. Additionally, the law attempts to broaden the standard for COVID-19 vaccination exemptions, in a manner which conflicts with federal law. Below are highlights from the Act and important takeaways for healthcare employers. The link to the Act can be found here.

Q. What is the purpose of the Act?

A. Putting aside questions of constitutionality and federal preemption, the Act attempts to provide more protection for employees that are subject to a vaccine mandate in this state, whether federally imposed or by a private employer of its own volition. Public employers in South Carolina may not institute a COVID-19 vaccine mandate (unless federal regulations require it), while private employers still can. However, as to the latter, the Act provides that an employee may be eligible for unemployment benefits if a private employer terminates, suspends, or otherwise reduces his or her compensation for failure to obtain a COVID-19 vaccine or booster. Notably, "failure to hire" is not among the adverse actions listed; thus, limiting any exposure for those private employers who previously issued mandates and already completed their cycles of separating employees for non-compliance. As to public employers, the Act provides that employees subject to a federal vaccine requirement are also eligible for unemployment benefits if the federal mandate gives the employer no alternative but to terminate the employee.

Q. What are some of the restrictions the Act imposes on employers (public and private) with mandatory vaccination requirements?

A. As a threshold matter, the Act provides that the State, or any political subdivision thereof, may not enact a COVID-19 vaccination requirement (see  Section 3), unless a court of this State or the United States holds a federal vaccine mandate enforceable. The law notes that vaccine incentives are otherwise permissible, noting that "nothing in the Act shall prevent an employer from encouraging, promoting, or administering vaccinations." (see  Section 6.)

With respect to private employers, the Act provides that a vaccine mandate may not extend to independent contractors, nonemployee vendors, or other third parties that provide goods or services to the private employer, and may not be used to coerce independent contractors, nonemployee vendors, or other third parties that provide goods or services to the employer into implementing a vaccine mandate to maintain the business relationship. (see Section 7.) Importantly, the provisions of this Section 7 of the Act do not apply to private employers who submit affidavits to the Department of Employment and Workforce (SCDEW) as discussed more fully below.

Q. How does the new Act attempt to expand permissible COVID-19 vaccine exemptions?

A. The Act attempts to broaden the standard for employees to qualify for a medical or religious exemption from any vaccination requirement. With respect to medical exemptions, the Act provides that a medical exemption may be granted when an employee bases their request on the presence of antibodies, a prior positive COVID-19 test, or pregnancy. Note, employees need not provide medical documentation from a physician under the Act.

For religious exemption requests, employees must only provide a short plain statement attesting to the fact that a tenet of his or her deeply held religious conviction would be violated if required to receive the vaccine or booster. (See Section 8.)

Neither of these provisions comports with Title VII's more narrow requirements for what constitutes an acceptable exemption request, raising obvious preemption issues.

The provisions of this Section 8 of the Act do not apply to employers who submit affidavits to SCDEW as discussed more fully below.

Q. Are there any carve-outs for employers subject to a federally mandated vaccination requirement?

A. Yes, the Act specifically provides that any restrictions under Section 7 (relating to restrictions on private employer mandatory vaccination requirements) or Section 8 (relating to COVID-19 religious and medical exemption standards) do not apply to an employer who submits an affidavit with SCDEW attesting to the fact that the employer has either: (1) a contract with the federal government; (2) a subcontract with a federal contractor; or (3) is subject to a federal regulation that contains a valid, enforceable provision contrary to the requirements of the sections. Likewise, these sections do not apply to employers seeking to enter into a federal contract or subcontract that includes a provision which conflicts with the new law, so long as the employer submits an affidavit to SCDEW attesting to the fact that the employer has been awarded a contract.

Therefore, any healthcare employer with a federal contract or subcontract that contains an enforceable provision regarding a mandatory vaccine requirement (or who seeks to enter into one), as well as any healthcare employer subject to the Centers for Medicare and Medicaid Services (CMS) federal vaccination mandate upheld by the U.S. Supreme Court on January 13, may submit an affidavit to SCDEW in order be excluded from the restrictions set forth under Sections 7 and 8 of the Act.

Q. How can employers submit an affidavit to SCDEW?

A. Employers subject to any federal vaccine requirement may submit an affidavit to SCDEW by emailing an affidavit to Vaxaffidavits@dew.sc.gov. Additionally, employers will receive an email confirmation following submission of the affidavit. Any affidavit filed with SCDEW will remain in effect until revoked by the employer. More information regarding vaccine affidavits can be found here.

Q. How long is the Act to be in effect?

A. The final section of the law includes a sunset clause which clarifies that all provisions of the Act shall be repealed on December 31, 2023, unless reauthorized by the General Assembly.

In sum, healthcare employers that are subject to any conflicting federal mandatory vaccine requirement should submit an affidavit to SCDEW to be exempted from the state's vaccine restrictions. Nexsen Pruet stands prepared to assist with the drafting of affidavits to ensure employers are in compliance with the new law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.