President Joe Biden surprised many across the political spectrum when, on the National Governors Association call Monday to discuss the Covid-19 pandemic, he said, “There is no federal solution. It’s up to the states.”

There was immediate speculation as to what this meant for the administration’s vaccine mandates for government contractors and members of the military. 

 His comments came three days before his administration is due to make an emergency response before the United States Supreme Court in defense of the government's vaccine mandate for any private business with more than 100 employees.

"The president's statements can definitely hurt his chances in court," Clark said. "One of the lower courts noticed how the president's prior statements and OSHA's statement do not line up with current position. The Supreme Court can take notice of that and conservative justices probably will."    

In response to the wave of mandates sweeping the country earlier this year, the Alabama legislature passed a law, Act 2021-561, which requires companies to recognize legitimate religious and medical exemptions, while also offering a path for employees to appeal the denial of their exemption.

"The Alabama law filled in critical gaps that federal law left open," Clark said. "Exemptions can be complicated at federal level. Alabama stepped in and said if you have a valid exemption, it should be respected.".

The law signed by Gov. Kay Ivey delegates the appeals process to the Alabama Department of Labor, which created a web portal through which employees can file their appeal, to be ruled on by an administrative judge. 

If an employee has been denied an exemption, he or she can file an appeal at the website vaxexemption.alabama.govThe employer will receive notice of the appeal via email and have three business days to respond with any pertinent information supporting their denial of the exemption. The administrative judge will then rule on the appeal. 

During this time, it is at the company's discretion whether or not the employee is physically present on the job. However, employers are required to continue compensating the employee through the appeals process, up to 30 additional calendar days.

Here is a summary of the process from the Alabama Department of Labor website:

  • Employee completes the exemption form (including obtaining a medical professional's signature, if applicable).

  • Employee returns the form to their employer (employees are also encouraged to retain a copy for their personal records).

  • Employer retains the form for the employee's file.

  • Employer either approves or denies the exemption request. The employer shall evaluate the request and liberally construe the employee's eligibility for exemption in favor of the employee.

  • According to Section 1(c) of Act 2021-561, the employer shall exempt vaccination as a condition of employment for any employee who has properly completed and submitted the exemption form.

  • An employer who has denied an employee's request may not terminate the employee on the basis of failing to receive a vaccination for a period of seven calendar days after the denial is issued by the employer, or if a request for review was made, until the administrative law judge or the court issues a final ruling in the employer's favor.

  • If denied, the employer provides the employee with instructions on how to request an administrative review and must compensate the employee at the same rate of compensation the employee received prior to submitting an exemption form, for a period of seven calendar days after the denial was issued by the employer, or if a request for review is made, until the administrative law judge issues a ruling in the employer's favor (no more than 30 additional calendar days).

State Sen. Chris Elliot (R-District 32) was one of the sponsors of the legislation, and he asserts the law is working exceptionally well.

"Of the tens of thousands of forms downloaded, there were 31 appeals processed, all but one has been honored by the employer," said Elliot. 

In the time since Elliot's comments to 1819 News, that lone exception was informed that his employer would be honoring the court's decision.

Critics of the legislation point to the lack of an enforcement provision in the bill, saying there is no way to enforce these decisions by the administrative judge.

"We're trying to interpret the law in a way that it has teeth, while companies are claiming there is no private right of action," Clark said.

In response to those criticisms, Elliot explained the legal process available if an employer still dismisses an employee in violation of the administrative judge's order.

"If an employer ignored the administrative court's ruling, then the employee could seek and receive a declaratory judgment finding the employer in contempt of court," Elliot said. "… no company wants that." 

Alternative methods of enforcement were discussed while the legislation was being crafted. Some advocated fines for employers not in compliance. However, Elliot asserts this would have allowed companies the freedom to make a cost-based judgment to pay the fines and still dismiss the employee. 

While Elliot may be justified in touting the success of the new law to this point, the process faces more complications in the coming weeks as the United States Supreme Court seems poised to weigh in on the issue. 

The U.S. Supreme Court agreed to take up disputes over the Biden administration's nationwide vaccine-or-testing COVID-19 mandate for large businesses and a separate vaccine requirement for healthcare workers.

The brief court order said the court will hear oral arguments on Jan. 7, 2022, in the two cases, with rulings likely to follow in short order.

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