United States: Alabama Employers' Quick Guide To The New State Rule On Vaccine Exemptions

We previously addressed the new Alabama law on COVID-19 vaccine exemptions for medical or religious reasons and its implications for employers. On November 18, 2021, the Alabama Department of Labor (ADOL) issued an emergency rule to adopt the required administrative procedures that ADOL will follow to address an employee's appeal from an employer's denial of a vaccine exemption request. 

The ADOL emergency rule also created a vaccine exemption portal through which employees and employers are to submit documentation relevant to an employee's appeal. The vaccine exemption portal also contains the state-approved vaccine exemption request form and a state-approved mandatory notice of the employee's rights to an appeal in the event the request is denied. 

Significant take-aways from the emergency rule and vaccine exemption portal include the following:

• The only ground for an exemption request under the law that requires the signed certification by a "licensed healthcare provider" is if the provider has recommended that the employee not be vaccinated due to current health conditions and medications. However, the Legislature did not define a "licensed healthcare provider" in the law. The ADOL addressed this oversight in the emergency rule by including the following definition of that term: Any "physician, physician assistant, advanced registered nurse practitioner or nurse who is licensed, certified or registered in accordance with laws and regulations" of Alabama or another state. Note this is still a broad term because, for example, it does not require the healthcare provider to be actively treating the employee at the time of the certification. It also would permit the employee to rely on a nurse's certification for the request. 
• An employee's request for an appeal of the denial of a vaccine exemption request must be filed using the on-line vaccine exemption portal. Any appeal or requests for administrative review will not be accepted using any other method.
• In making an appeal, the employee must submit a copy of the denied exemption request form and include valid e-mail addresses for the employee and the employer. The employee is permitted to submit copies of any other documentation he/she wishes for the state Administrative Law Judge ("ALJ") to consider in rendering a decision. However, all documentation that the employee wants for the ALJ to review must be submitted through the portal at the time the appeal is made.
• Upon receiving a timely appeal, ADOL will notify the employer (presumably by e-mail) of the appeal. The employer will then have only three business days to submit all documentation or evidence (which may include an affidavit from an employer representative) it wishes for the ALJ to consider in rendering a decision. Like the employee's initial submission, this will be the only submission that ADOL will accept from the employer on the appeal.
• All of the submissions through the vaccine exemption portal are strictly confidential and not open to public inspection.
• There will be no live hearings granted by the ALJ in reviewing a claim of exemption, and the appeal will be decided based only upon the documentation submitted through the portal by the employee and employer.

One additional issue with the law that is not addressed by the emergency rule remains that in the event the denial of the exemption is affirmed, the employee is permitted to appeal that decision to the State Circuit Court. The law does not explicitly provide a similar appeal right to the employer in the event that the ALJ reverses the employer's decision to deny an exemption request. Please note also that, in the event that a denial of the exemption request is affirmed through the appeals process, the vaccine exemption law explicitly states that it does not create a cause of action for an employee who is terminated after refusing to be vaccinated.

As previously reported, Alabama's vaccine exemption law conflicts in multiple ways with the federal COVID-19 vaccine mandates. Alabama employers imposing their own mandate on their workforce or who may be complying with an applicable federal vaccine mandate (assuming that mandate has not been stayed by a federal court) should carefully review Alabama's exemption law and consult with an employment lawyer before taking action against an employee seeking an exemption.