Q: Are there any state laws employers should think about when implementing COVID-19 vaccine policies?
A: Yes, multiple states have passed or are considering laws related to COVID-19 vaccine policies.
Savvy employers tracking the latest guidance likely know the many sources of federal guidance pertaining to COVID-19 vaccines in the workplace. For instance, the Centers for Disease Control and Prevention (CDC) made headlines with its May 13 guidance loosening face mask and distancing restrictions for fully vaccinated individuals, as did the Equal Employment Opportunity Commission (EEOC) with its updated COVID-19 vaccine Q&As. Just recently, the Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard for health care employers and updated guidance for employers in other sectors. As if that wasn’t enough, multiple states also have passed laws impacting employers looking to implement a COVID-19 vaccination program.
State Laws Regarding Vaccine Mandates
Montana recently passed one of the country’s strictest laws regarding COVID-19 vaccination: The law prohibits employers from requiring employees to receive a vaccine whose use is only authorized under an Emergency Use Authorization, as opposed to FDA approval, which is the case for each of the currently available COVID-19 vaccines. While some states (such as Arkansas) have passed similar laws that apply to only public employers, Montana’s law applies to private employers as well. Similarly, Oregon prohibits employers from requiring vaccinations as a condition of employment for health care workers, unless vaccination is otherwise required by federal or state law, rule, or regulation. (Currently, federal law does not require vaccination for health care workers, though OSHA’s new emergency temporary standard applicable to health care employers encourages vaccination by, for example, requiring covered employers to offer paid leave related to receiving the COVID-19 vaccine). Moreover under the North Carolina Occupational Safety and Health Act, employers are not authorized to mandate immunization for those who object to immunization on religious grounds, except where it is necessary for the protection of the health or safety of others.
State Laws Regarding Vaccine Passports
Montana’s law also adds vaccination status as a protected category under the state’s discrimination law, meaning employers cannot discriminate against a person in any term, condition, or privilege of employment based on someone’s vaccination status — or based on whether an employee has what is called an “immunity passport.” Such vaccine passports are the subject of multiple state laws or executive orders (such as those in Idaho, Indiana, and Texas) that prohibit the state from requiring someone to provide documentation of a vaccine. Several of those vaccine passport laws (e.g., in Alabama and Florida) also prohibit the requirement of vaccine passports for a private business to provide services or sell goods to a customer. However, state vary significantly in how they treat this subject. For instance, New York has recently introduced a government-sponsored digital vaccine passport program called the Excelsior Pass. And unlike Montana’s law, Florida’s vaccine passport prohibition does not apply to employers. That said, many more states have introduced bills that would prohibit an employer from requiring a vaccine as a condition of employment, though some have died in committee and others remain pending. Employers should check the status of any such laws or executive orders in their states of operation before implementing a mandatory vaccine program.
State Laws Regarding Vaccine-Related Leave
Employers also should be aware of state laws that require them to provide vaccine-related leave. Several states, like California and New York, have passed laws specifically requiring paid leave related to receiving a COVID-19 vaccine. A few states have also passed laws that allow a one-time grant of extra leave for certain pandemic-related reasons that may cover vaccine-related leave requests. For instance, Colorado and Philadelphia’s COVID-19 laws allow extra leave for certain COVID-19-related reasons, which both entities have specifically indicated would include reasons related to receiving a vaccine, while Pittsburgh has a similar “emergency COVID-19 leave” law that arguably could be construed to cover the vaccine even if the ordinance has not expressly stated so. Illinois, through its Department of Labor, has issued guidance stating that employees should be paid for the time they spend to receive the vaccine (if mandatory) or be allowed to use existing leave (if optional), though no separate leave is required specifically. Finally, some states have existing sick leave laws on the books that could cover leave related to symptoms from a COVID-19 vaccination.
As federal guidance continues to evolve and more states consider legislation related to COVID-19 vaccines in the workplace, employers should stay on top of the latest developments before implementing or continuing a COVID-19 vaccine policy. For more information or help finding the latest guidance, contact the Troutman Pepper Labor and Employment team or COVID-19 Resource Center.