Alabama Employers Must Now Provide Vaccine Exemption Forms With Passage of SB9

On November 5, 2021, Alabama Governor Kay Ivey signed into law a bill (SB9) that permits Alabama employees to claim an exemption from COVID-19 vaccination requirements for medical reasons or because of sincerely held religious beliefs if they make the request to their employer using a standard exemption form provided by the bill. The new law also provides employees with an administrative appeal process if their exemption request is denied and employment terminated for failing to be vaccinated.

The new Alabama law requires employers to make the standard exemption form “readily available” to employees, along with directions for submitting the form. Employers are required to “liberally construe” the employee’s eligibility for an exemption in favor of the employee. There is a presumption under the law that the employee is entitled to the exemption if he/she submits a properly completed form. 

What Are the Eligible Reasons for Exemption?

The exemption form sets out eight specific reasons for a medical exemption. The first reason, and the only one for which a healthcare provider must also sign the form, is a catch-all for the employee to claim that his/her provider has recommended that the employee “refuse the COVID-19 vaccination based on my current health conditions and medications.” The form does not require that the employee or provider describe those health conditions or medications with any specificity. 

All of the other reasons on the form for a medical exemption may be self-reported by the employee, without any separate certification by a healthcare provider. They include that the employee has been previously diagnosed with COVID-19 within the past 12 months. The other permitted reasons are:

• Previously suffered a severe allergic reaction, such as anaphylaxis, to a vaccination.
• Previously suffered a severe allergic reaction to receiving polyethylene glycol or products containing it.
• Previously suffered a severe allergic reaction to polysorbate or products containing it.
• Have received monoclonal antibodies or convalescent plasma to treat COVID-19 in the last 90 days.
• Have a bleeding disorder or taking blood thinners.
• Severely immunocompromised such that the vaccine would cause a health risk. 

In signing the exemption form, the employee is swearing and affirming that the information he/she has provided is true and accurate. The form further states that the employee understands that providing false or misleading information can be grounds for discipline, up to and including termination from employment.

What Is the Process for Challenging Denials of Exemptions?

The new law also sets up a procedure for the employee to challenge a denial of an exemption request by appealing to the Alabama Department of Labor (the “ADOL”) within seven days of the denial. The bill instructs the ADOL to adopt an emergency rule, not more than 21 days after the effective date of the act (which was November 5, 2021), to establish this appeal process. An Administrative Law Judge (“ALJ”) is required to issue a ruling within 30 calendar days of receiving the appeal. If the ALJ upholds a denial of an exemption request, the employee then has 14 days after such a ruling to appeal to the state Circuit Court. 

What Limitations Are There on Employers If They Deny an Exemption?

If an employer denies a request for an exemption, then it may not terminate the employee on the basis of not being vaccinated from COVID-19 for a period of seven days after the denial to permit time for the employee to appeal. If an appeal is filed, then the employer may not terminate the employee until a final ruling is issued by the ALJ or Circuit Court Judge. 

Employers must also continue to pay employees at their normal rate of compensation for a period of seven days after denying an exemption or, if an appeal is filed, until the ALJ issues a ruling in the employer’s favor. Note that this section of the law does not make any distinction for hourly employees, who normally are not paid if they are not working. 

Unless extended by a subsequent act of the Legislature, this new law expires on May 1, 2023.

What Does SB9 Mean for Employers in Alabama facing Federal Vaccine Mandates?

The new law potentially puts Alabama employers in conflict with the federal vaccine mandates. The law will be of particular concern to Alabama federal contractors and healthcare providers because, unlike the OSHA rule, employees working for employers covered by President Biden’s executive order and the CMS rule do not have a testing option under those mandates. Also, the medical reasons for the exemption under the Alabama law, in particular the claim of prior COVID-19 immunity, also are potentially broader than those that would be expected to qualify for a medical exemption under the federal mandates.

With the signing of SB9 into law, employers must act quickly to ensure their policies and procedures are in place for employees wishing to submit an exemption form and that employers comply with SB9 when evaluating vaccine exemption requests. Please contact Michael Turner or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. And for more information related to COVID-19, visit Phelps’ COVID-19 Client Resource Portal.