50-state Update on Pending Legislation Pertaining to Employer-mandated Vaccinations
Updated April 20, 2021- Hush Blackwell LLP
Per recent federal employment law guidance, private employers can generally require employees to get vaccinated for COVID-19 as long as they comply with federal employment laws that prohibit discrimination on the basis of religion and disability.
Most states currently recognize only medical and/or religious objections to employer-mandated vaccinations. Given the increasing availability of the COVID-19 vaccine, many states are considering legislation intended to prevent employers from mandating vaccinations and protecting current and prospective employees who refuse vaccination from discrimination and retaliation.
The proposed legislation varies widely by state in terms of who would be shielded from mandatory vaccinations and under what circumstances. Some legislation would prohibit employer-mandated vaccinations outright, some would permit mandated vaccinations only for employees who work in a healthcare facility or with medically vulnerable populations, and some would expand the federally-recognized religious exemption to include philosophical objections or objections of the conscience. Nearly every bill pertaining to the rights of current or prospective employees prohibits employers from making vaccination a condition of employment or taking adverse actions based on an employee’s COVID-19 vaccination status.
A few bills propose to extend protections against mandatory vaccinations beyond the employment context. In these states, public entities—including government agencies and schools—and, in some cases, even private businesses would be prohibited from denying entry or refusing to provide goods and services to individuals who have refused vaccination.
Under some proposed legislation, businesses, employers and individuals found in violation may be subject to steep fines; civil liability, often including attorneys fees; and in some circumstances, even criminal liability and imprisonment.