Currently pending before the Arizona legislature, Senate Bill 1648 would prohibit discrimination in the workplace (and elsewhere) against individuals who have not received or who refuse to receive a COVID-19 vaccine. As proposed, the bill would prohibit any employer from requiring a person to receive or disclose whether they have received a COVID-19 vaccine as a condition of being hired or remaining employed. The bill additionally would amend not only Arizona’s state statutes devoted to employment matters, but also would prohibit nearly any business or public space from limiting access to a person on the basis of their receipt or non-receipt of a COVID-19 vaccine to any indoor or outdoor spaces or buildings, places of public accommodation (as defined by A.R.S. § 41-1491), spaces that are owned, leased, operated, occupied, or otherwise used by a public body (as defined by A.R.S. § 39-121.01), and places that are generally open to the public. This partisan bill, sponsored by seven Republican Senators, is not yet set for a vote.
Arizona is just one of many U.S. states that have seen legislation introduced targeted at protecting employees (and persons in general) who choose not to receive a COVID-19 vaccine. However, the protections in these bills, and to whom they apply, vary significantly from state to state. For example, some proposed bills would regulate only public employers (see below). Others don’t prohibit vaccine requirements, but impose limitations on them. For example, Montana’s proposed law allows employer vaccine mandates, but requires that any accommodations provided by an employer for individuals who refuse to obtain a vaccine due to medical or religious reasons must also be offered to any employee who refuses to become vaccinated, for any reason.
The list of states with currently pending vaccine anti-discrimination legislation, and links to the pending bills, includes: Alabama (here and here), Alaska, Arkansas, California, Colorado, Connecticut, Georgia (public employers), Illinois, Indiana, Iowa (here and here), Kansas, Maryland, Michigan, Minnesota, Missouri (public employers), Montana (accommodations to employer mandated vaccine policy), New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, (public employers), Virginia (public employers), Washington, Wisconsin (here and here). These bills are at various states in the legislative process.
For the most part, these bills would seek to override recent federal guidance from agencies such as the U.S. Equal Employment Opportunity Commission that employers may require employees to receive a COVID-19 vaccine as a condition of employment, provided that employees may be entitled to reasonable job accommodations in the event that a disability or sincerely held religious belief prevents them from being vaccinated. What a reasonable accommodation would be in such cases could vary dramatically on an employer- and employee-specific, case-by-case basis. Further, where allowed, when seeking proof of vaccination or administering vaccinations themselves, employers must be mindful not to violate other applicable laws prohibiting disclosure of genetic information (Genetic Information Nondisclosure Act) or improper or overly broad medical inquiries (Americans with Disabilities Act). Whether these bills, if they become state laws, may be challenged on various bases, including possible preemption by any federal law, remains to be seen.
This blog originally appeared at Employment Law Worldview. Reprinted with permission.
About the Author: Dan Pasternak works with employers to solve workplace problems. Sometimes that involves helping develop, implement and enforce effective and business-sensible employment and traditional labor relations policies and practices. Other times, it involves representing employers in high-stakes litigation matters.
