Alabama joined other states in pushing back against federal workplace vaccine mandates. On November 5, 2021, Alabama Governor Kay Ivey signed into law Senate Bill 9 that places new limits on Alabama employers’ ability to terminate the employment of workers who refuse a mandated COVID-19 vaccine.

The Alabama legislation, which took effect immediately, requires that employers mandating COVID-19 vaccines give workers the opportunity to request an exemption, and bars employers from firing anyone who makes that request for a specified period during consideration and/or denial of an exemption request, and, if denied, potentially an appeal to the state. Specifically, the law provides that employers must:

• Provide employees an opportunity to claim an exemption from the COVID-19 vaccination for medical reasons (including prior COVID infection) or sincerely held religious beliefs;

• Provide employees requesting an exemption with a form using standard language requesting the exemption as specified in the statute;

• Construe employee exemption requests liberally and in favor of the employee’s request; and

• Continue for at least seven days the paid employment of an employee whose request is denied, or until an administrative law judge rules on an employee’s appeal of the denial.  

The new law further requires that the state’s Department of Labor adopt within 21 days an emergency rule authorizing a process for employees to appeal the denial of any accommodation request to an administrative law judge (ALJ) for the Department of Labor, and provides for appeal of the ALJ’s decision. We expect further action will be forthcoming and will keep employers apprised of relevant developments.

11^th Circuit Temporary Stay

This legislative response comes in in addition to a petition filed by Alabama, Florida, and Georgia in the Eleventh Circuit challenging OSHA’s recent Emergency Temporary Standard (ETS) (the so-called federal vaccine mandate), arguing it demonstrates a disregard for constitutional rights. That case, State of Florida, et al. v. Occupational Safety and Health Administration, case number 21-13866, is pending in the U.S. Court of Appeals for the Eleventh Circuit. On Saturday, November 6, the U.S. Court of Appeals for the Fifth Circuit temporarily enjoined enforcement of the ETS.  It is expected that the various challenges filed in federal courts will be consolidated for a single adjudication in the weeks to come.  Unless and until employers get clarity as to their various obligations under federal and potentially conflicting state laws, business with employees in Alabama are advised to consult with counsel in navigating various mandates regarding COVID-19 vaccines.