New Kansas Vaccine Law

The new law requires that, if a Kansas employer imposes a COVID vaccination requirement, the employer shall exempt an employee if the employee submits a written waiver request to the employer stating that complying with such requirement would either (1) endanger the life or health of the employee or an individual who resides with the employee, or (2) violate the employee’s sincerely held religious beliefs. The law defines religious beliefs to include, but not limited to, “theistic and non-theistic moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views.” In addition, the new law requires that employers shall grant an exemption to vaccine requirements based on sincerely held religious beliefs “without inquiring into the sincerity of the request.” Employees seeking a medical exemption under the new law must provide a written statement by a physician, or similar practitioner, supporting the request for exemption.

The law also provides that employees who lose their job for failing to comply with an employer’s vaccine requirement, and assert that their employer violated the new provisions of the law, will not be deemed ineligible for or disqualified from receiving unemployment benefits on grounds that the employee violated an employee work rule in refusing to be vaccinated. Unemployment benefits for such employers can be paid retroactively during the period September 9, 2021 through the effective date of the law

Update on OSHA ETS

The Biden administration filed a motion on Tuesday urging the Sixth Circuit court of appeals to lift a court order blocking the ETS.

“Delaying this standard would endanger many thousands of people and would likely cost many lives per day,” government lawyers argued. “With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”

DOL Finalizes Fed. Contractor $15 Minimum Wage

The U.S. Department of Labor on Monday finalized a rule to raise the minimum wage for federal contract workers to $15 an hour, implementing an executive order by President Joe Biden that will impact hundreds of thousands of workers

On November 15, the Florida Legislature convened for a special session to consider four proposed laws reacting to the recent federal vaccine mandates applicable to various employers throughout the country. Governor DeSantis’s announced intent for calling this special session and promoting the bills was to “stop the coercion” of the federal government in requiring employers to mandate their employees be vaccinated against COVID-19.

One of the four bills signed into law today was HB-1B. Although other Florida prohibitions wholly prohibit public employers from mandating vaccines, this bill notably does not prohibit private employers in Florida from doing so. Instead, it explicitly allows vaccine mandates but imposes restrictive requirements on any private business that chooses to maintain one.

New Florida Vaccination Law

A new Florida law states that private employers may require employees to be vaccinated. However, a private employer may not impose a COVID-19 mandate without providing individual exemptions allowing an employee to “opt out” of such mandate based on one of five reasons. 

The law expressly states employers must allow an employer to opt out – not simply consider a request to opt out. These are the five permissible opt-out reasons:

1.        Medical Reasons

An employer must allow an employee to opt-out for medical reasons, including for pregnancy or anticipated pregnancy. Additionally, the law specifically does not require a “disability” or a “handicap” (the term the Florida Civil Rights Act uses as a synonym for the ADA’s disability definition), but notes only an employer must allow an accommodation for a medical reason.

To claim an exemption based on a medical reason, the employee must present to the employer an exemption statement, dated and signed by a physician, physician assistant, or advanced practice registered nurse certifying in their professional opinion the COVID vaccination is not in the best medical interest of the employee.

2.        Religious Reasons

Employees can also claim exemption based on “religious reasons.” Unlike a request for accommodation under Title VII, this Florida law directs employers to exempt an employee who presents a statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.

3.        COVID Immunity

An employer must also allow an exemption if an employee presents a statement demonstrating “competent medical evidence that the employee has immunity to COVID, documented by the results of a valid laboratory test performed on the employee.”

4.        Periodic Testing

The Florida law requires employers to allow an employee to test as an opt-out. To claim this exemption, the employee’s exemption statement must indicate the employee agrees to comply with regular testing for the presence of COVID at no cost to the employee.

5.        Use of Employer-Provided PPE

Last, the Florida law allows employees to present an exemption statement indicating the employee agrees to comply with an employer’s “reasonable written requirement” to use employer-provided personal protective equipment when in the presence of other employees or other persons.

But, (and this applies to the new KS law too), when state and federal law conflict, federal law displaces or preempts state law. The Supreme Court has noted when rules and regulations do not clearly state whether preemption applies, the lawmakers’ intent should control, but with a bias against preempting state laws. Under the Supremacy Clause, conflict arises when it is impossible to comply with both the state and federal regulations or when the state law interposes an obstacle to the achievement of the federal law or its discernible objectives.

Written by: Gordon M. Berger, Partner 

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