On March 3, 2022, Governor Holcomb signed into law House Bill 1001, which addresses employer vaccine mandates in Indiana. The new law was an emergency action that took effect immediately. It adds a required exemption for immunity, in addition to accommodations for medical and religious reasons. The law also limits an employer’s ability to ask questions about an employee’s exemption. Employers with employees in Indiana who have a policy requiring COVID-19 vaccinations need to become familiar with the new law and consider how it impacts their current policies and practices.
Before addressing the details of the vaccination exemptions, we should take a look at the coverage of the new law. First, the new vaccination exemption requirements are not only applicable to employees, but also to contractors, subcontractors, and individuals working as trainees or interns. In other words, if a company requires that contractors be vaccinated before working on its premises, the company must consider the same exemptions for contractors as it does for the employees on its payroll.
Second, the law does not apply to all employers. The law carves out from coverage health care providers who are subject to the federal vaccination mandate. Employers with federal contracts or subcontracts or grants that require vaccinations also are not covered if they file evidence with the secretary of state that the requirement is imposed by a federal law, regulation, or executive order and that the vaccination requirement is a condition to receiving federal funds. In addition, professional sports organizations and some entertainment venues do not need to provide exemptions from vaccination beyond those required by federal law for employers who work in close proximity to the live sports or entertainment.
If you fall in the large majority of businesses that will be covered, you need to understand the exemptions the law requires you to provide to any vaccine requirement you impose. Let’s take them each individually, with the newest one first: Immunity acquired from a prior COVID-19 infection.
Under the new law, covered employers must provide an exemption from a vaccine requirement to those employees who are immune from COVID-19. Employers do not need to require documentation of immunity, but, if they do, employers can require employees to submit results of a laboratory test, no more than once every three months, to demonstrate the employee’s immunity. The test can be any test approved by the federal Food and Drug Administration, including a PCR test or an antigen test (both of which would presumably show a current infection or an resolving infection that still tests positive) or an antibody or serology test. Importantly, once the employee has provided proof of immunity, the employer cannot make any further inquiries (until three months have passed) and must provide the exemption.
The next exemption is one with which employers are more familiar—a medical exemption. Unless waived by the employer, the employee must provide a written statement that is dated and signed by a licensed physician, a licensed physician’s assistant, or an advanced practice registered nurse who has examined the employee. The statement must confirm that, in the provider’s professional opinion, receipt of the vaccine would be detrimental to an individual’s health because of a medical condition of the individual. Once the individual submits such documentation, as with documentation of immunity, the employer may not inquire further.
The third and final exemption is the religious exemption, which only requires a written statement that the employee declines the vaccination based on a sincerely held religious belief. The new law does not state that the employee must provide details of the belief, however—it only requires that the employer provide an accommodation in compliance with Title VII, which is the federal law that requires religious accommodations. As a result, the employer may be able to require at least that the employee state what religious belief prevents the employee from taking the vaccination. Under the federal law, according to the Equal Employment Opportunity Commission, the employer must assume that the belief is sincerely held unless there is objective evidence to show otherwise. Under Title VII, employers are only required to provide a reasonable accommodation that does not create an undue hardship on the employer.
If an employee is exempt from a vaccination requirement, the employer may require that the employee be tested for COVID-19 no more than twice a week. The testing method used must be approved by the FDA, be the least invasive option available, and not create an undue burden on the employee. It is unclear whether this means that employers must pay for the test or the time required for the employee to take the test. As a general rule, testing should be at no cost to employees. If the employer requires a particular test method that requires a payment, the employer may need to pay for the test as part of an accommodation. If the test is required during the workday, the employer must pay for the time spent waiting for and taking the test. The same can be true in some circumstances where the employee is taking the test outside of the workday.
If you have or are contemplating a vaccination requirement for employees in Indiana, you should consider whether you are covered by this new law and, if so, what modifications are needed to your policies and procedures to comply. At the very least, the immunity exemption will need to be added to any policies that list available exemptions to the vaccination requirement.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.