What Alabama Employers Should Know About the Governor’s Executive Order on Vaccine Mandates

Alabama Governor Kay Ivey’s Oct. 25 executive order addresses recent federal COVID-19 vaccination requirements. The EO makes it clear that Alabama will join other states in legal challenges to the mandates but stops short of banning them altogether.

What federal efforts does the EO address?

The EO mentions President Biden’s recent federal contractor COVID-19 vaccine mandate and the impending OSHA emergency temporary standard, which is expected to require employers with 100 or more employees to mandate the COVID-19 vaccine or have their non-vaccinated employees tested weekly.

How does the EO affect Alabama’s state agencies?

• It requires all state agencies in the executive branch to cooperate with any litigation filed by the Office of the Alabama Attorney General to challenge federal vaccination requirements.
• It bars state executive branch agencies from imposing a penalty on a person or business for not complying with a federal vaccine requirement. However, that does not stop a federal agency, such as OSHA, from penalizing that person or business for non-compliance.
• Prohibits an entity of the state executive branch from including a provision in any state contract imposing a duty or obligation on a private party with respect to the COVID-19 vaccination status of the party or its owners, officers or employees.

What does this mean for private employers in Alabama?

The EO does not go as far as some states, such as Texas, and create a direct legal conflict between state and federal law. For that reason, the EO does not provide private Alabama employers with a state law defense to the federal vaccine requirements. Likewise, the EO does not invalidate any current vaccine mandates by private Alabama employers, but employers should continue to comply with all applicable laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, among others, when administering such a policy or asking about employees’ vaccine status. 

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.