Short Answer: Probably yes, unless other exceptions apply and these exceptions would appear to be limited. Read on to learn more in this quick summary based on what is known as of August 4, 2021.
The Alabama “vaccine passport” law (Act 2021-493) was signed into law on May 24, 2021 by Gov. Kay Ivey. The Act addresses four key points, three of which focus on state and local government entities and public and private educational institutions (not the subject of this blog article).
A fourth component of the Alabama law “prohibits businesses from refusing to provide goods or services, or refusing to allow admission, to an individual based on the customer’s immunization status of lack of immunization documentation.” [Source: Public Notice issued by Steve Marshall, Alabama Attorney General, published July 26, 2021, page 1.]
The Public Notice issued by Alabama Attorney General referenced above includes the following statement:
Note that subsection (d) protects consumers of goods and services and does not address employer-employee relationships. Thus, it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.Public Notice, Steve Marshall, Alabama Attorney General, Published July 26, 2021 (top of page 3).
Since the Alabama Vaccine Passport Act does NOT prohibit employers from requiring employees to be vaccinated, the question then becomes whether there are other laws or regulations that might apply.
Employers need to remember that they must comply with other applicable federal and state employment laws and regulations when introducing new policies for their workplace as a condition of employment.
Is There A Contract of Employment or Union Contract Involved?
Alabama is an employment at-will state, so unless the employment is governed by a union contract or the employee has his/her/their own custom employment contract, the employment relationship is consider “at will,” meaning the employer can, generally, terminate employment for any reason or no reason (keeping in mind again their there are federal and state law protections for certain protected classes).
Another factor in this issue for consideration would pertain to “consideration.” Generally speaking, an offer of continued employment if the employee provides proof of COVID-19 vaccination would be adequate consideration in the at-will situation.
Is The Employee a Member of a Protected Class?
State and federal laws exist that prohibit discrimination based on various protected classes and conditions. Two potentially applicable possibilities come to mind: Prohibitions against discrimination based on religion and prohibitions against discrimination based on disability under the ADA. There may be others, as I have not taken the time to research this in-depth for this blog article.
Keep in mind that the Americans with Disabilities Act applies to employers with 15 or more employees. The ADA aside, it’s possible that an employee’s medical condition might protect the employee from being required to receive a COVID-19 vaccine under other laws. Since other laws and regulations may provide a medical exemption, small employers should not assume that because the ADA doesn’t apply that the employee is not entitled to a medical exemption from any vaccine requirement.
Civil rights laws and constitutional protections will apply to all employers, regardless of size.
Other Potentially Applicable Issues
An employer who wants to impose a vaccine requirement as a condition of employment should consult with an attorney to consider all applicable laws, regulations, issues and ramifications, including notice, timing and have policies in place to protect the privacy of an employer’s medical information.
According to this article published on AL.com, some Alabama employers are moving forward to mandate vaccine requirements. Tyson Foods and Ascension (a Catholic healthcare system) are two large employers mentioned in the article.
I will also disclose that I am pro-vaccine and received my first dose of the PfizerBioNTech Covid-19 vaccine as soon as I was eligible to receive it and could get an appointment and my second dose three weeks later.