What Does the New Iowa Vaccine Waiver Law Do?
Posted on 10/29/2021 at 04:56 PM by Jill Jensen-Welch
Last night the Iowa Legislature passed a bill providing COVID-19 vaccination waivers for employees and unemployment benefits for those who lose their jobs for refusing an employer’s vaccine mandate.
HF 902 was taken up in a special session that was called to consider redistricting voting maps based on U.S. Census data. Governor Kim Reynolds has already signed the legislation, which was unrelated to the special session’s purpose, and it is now law.
It’s dangerous to blog in depth about new legislation that was only unveiled to the public yesterday, but we’re going to give it a go. (That’s a disclaimer, if you didn’t recognize it as one.)
HF 902 creates new Chapter 94 in the Iowa Code for employees to request COVID-19 vaccine waivers. The definition of “employer” in new Chapter 94 makes it applicable to businesses and organizations employing just one individual in Iowa. Here’s what it says:
An employer that requires an employee to receive a COVID-19 vaccine shall waive the requirement if the employee, or, if the employee is a minor, the employee’s parent or legal guardian, requests a waiver and submits either of the following to the employer:
- A statement that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee.
- A statement that receiving the vaccine would conflict with the tenets and practices of a religion of which the employee is an adherent or member.
In #1, employees may be self-empowered to determine whether the COVID-19 vaccine would injure their own health or well-being. Not only that, employees may also be empowered to determine whether their own inoculation would somehow be injurious to the health or well-being of anyone who resides with them. [EX: I am not opposed to getting the COVID-19 vaccine, but, if I get the vaccine, doing so would injure my roommate’s health or well-being.]
Looking deeper, here’s what new Chapter 94 does not do:
- It does not say who can make the “statement” in support of the “request” for a COVID-19 vaccine waiver. It does not prohibit employers from requiring a doctor’s or faith leader’s statement to support the employee’s COVID-19 vaccine waiver request, but it doesn’t allow it either. The Des Moines Register reported that “The statement [submitted with a request for waiver] would not need to be attested by a physician or faith leader, Republicans said Thursday.” Even that leaves room for debate as to whether employers could request or require a doctor’s or faith leader’s statement or not.
- It does not limit or forbid employers from dictating what an acceptable “statement” for a COVID-19 vaccine waiver must include.
- It does not define what “injurious to health and well-being” means.
- It does not define “religion.” That term is defined under the ICRA and Title VII, and courts would likely use those definitions to interpret Chapter 94.
- It does not prohibit Iowa employers from terminating an employee who requests or is granted a waiver. That said, the new law may be deemed a public policy of Iowa, which would allow employees to bring a wrongful discharge lawsuit if they are discharged for requesting a waiver or not being granted a waiver. Such a claim is a tort claim that is derivative of Chapter 94, rather than a statutory claim brought under Chapter 94.
- It does not limit employers from requiring employees who are granted a COVID-19 vaccine waiver to also work remotely, undergo testing, wear masks, or take any other additional measure that would increase the safety of a workplace with unvaccinated employees.
- It does not apply to applicants for employment. As such, applicants cannot request a vaccine waiver and Iowa employers can require new hires to be fully vaccinated. (Reasonable accommodations must be made for applicants under the ICRA, ADA, and Title VII, however.)
- It does not identify an agency of Iowa government to enforce the law with regulations, investigations, or penalties.
- It does not provide a remedy for employees who allege their employer violated the law.
- It does not provide a penalty for Iowa employers who are found to have violated the law.
- It does not explain why an Iowa employee should be excused from getting the COVID-19 vaccination themselves because their vaccine would somehow be “injurious to the health and well-being” of someone else who resides with them.
- It does not relieve employers from the duty to reasonably accommodate persons with disabilities, pregnancy concerns, or religious conflicts with the COVID-19 vaccine if the employer is subject to the Iowa Civil Rights Act (4 employees) or the Americans with Disabilities Act (15 employees) or Title VII of the Civil Rights Act (15 employees).
Reasonable Accommodations or Waiver Request: Which Is It?
Is a waiver request under Chapter 94 the same as a request for reasonable accommodation? Here’s a good lawyer answer for you: Most of the time “yes," but some of the time “no.” To be clearer:
- When it comes to religious conflicts, the answer is an across-the board “yes” because a Chapter 94 waiver request appears to be the same as a Title VII or ICRA request for reasonable accommodation.
- Every request for reasonable accommodation for a disability, pregnancy concern, or religious conflict with the COVID-19 vaccine is also a Chapter 94 waiver request. That’s another “yes” part of the answer.
- The “no” part of the answer comes in because Chapter 94 requests for COVID-19 vaccine waivers due to medical concerns can be broader than requests for reasonable accommodation for disabilities or pregnancies. Remember, Chapter 94 uses the term “injurious to health or well-being” rather than “disability” or “pregnancy.”
The trick will be knowing when a request is sufficient to constitute a request for reasonable accommodation for a “disability” or “pregnancy” concern under other laws, and when a request is a Chapter 94 concern that the COVID-19 vaccine would be injurious to health or well-being.
We have decades of regulations, guidance, case law, and experience dealing with reasonable accommodations for religion and disabilities – and we have been accommodating pregnancies for the last six years or so. Employers have always had discretion to be strict or lenient in the processes used to fulfill their duty to provide reasonable accommodations.
On the lenient end of the spectrum, employers don’t ask questions. They don’t ask or require medical support or support from a faith leader, don’t suggest alternative accommodations, don’t conduct an undue hardship analysis (formal or informal), and grant requests as initially presented. Employers who use a lenient approach to handling reasonable accommodation requests set a dangerous precedent and give away their power to manage these requests for better outcomes.
On the strict end of the spectrum for the reasonable accommodation process, employers are rigorous, yet thoughtful and fair. This type of process includes:
- Requiring medical support for requests for accommodations for disabilities or pregnancies—similar to FMLA Medical Certification.
- Requiring a statement from a faith leader (if the religion has one) for religious conflicts.
- Gathering information about the nature of the disability, pregnancy concern, or religious belief.
- Asking what accommodations the employee wants and what accommodations the healthcare provider or faith leader recommend. (You might not provide them, but you need to know where to start.)
- Discussing the request with the employee in an exchange of ideas.
- Deciding which accommodations are an undue hardship on the organization and cannot be made—in accord with the various standards for undue hardship—and which ones are not, but are still effective and can be offered to the employee.
Chapter 94 does not regulate or modify the employer’s duty to reasonably accommodate, as imposed by the ICRA, ADA, or Title VII. Chapter 94 does, however, appear to codify a lenient approach to COVID-19 vaccine waiver requests. At the same time, Chapter 94 does not expressly outlaw a strict approach. Bottom line: there are no clear answers at this time for exactly how employers can approach the process for COVID-19 vaccine waiver requests.
Employers who decide to take a lenient approach to COVID-19 vaccine waiver requests can use new Chapter 94 as the reason to do so. Such leniency should be narrowly limited to COVID-19 vaccine waiver requests only. Employers who decide to be lenient should anticipate employees pushing to expand that same ease of process to reasonable accommodation requests that are unrelated to COVID-19 vaccinations. When a COVID-19 vaccination waiver request simultaneously constitutes a request for reasonable accommodation (see previous section of this post), employers can treat it as the latter and follow a strict approach until proven otherwise. We’ll let you know if clarifications come out on this very important but vague portion of the new Chapter 94.
Unemployment Insurance Benefits
The second major portion of HF 902 is its amendments to Iowa unemployment insurance law. Under those amendments, employees who lose their jobs for refusing to get a COVID-19 vaccination are eligible for unemployment benefits. This includes employees discharged for objecting to the vaccine for any reason, whether medical or religious, or even social or political. This provides a safety net for employees who think they can live on regular unemployment until the next job comes along. Remember, the unemployment pandemic perks from the federal government have all expired, and nothing in HF 902 extended the vaccine waiver requests to applicants.
In addition, HF 902 gives employers monetary protections regarding unemployment benefits paid to former employees due to a job loss for refusing the COVID-19 vaccine. No previous employer’s account will be charged for unemployment benefits paid to a worker who was discharged for refusing the COVID-19 vaccination. Also, no previous employer’s unemployment experience rating will be impacted by unemployment benefits paid to employees discharged for refusing the COVID-19 vaccine. Finally, Iowa Workforce Development is barred from imposing penalties or taking any other action against such previous employers. Sounds good for employers in the short term, but there’s a long-term catch.
Unemployment benefits paid to discharged vaccination refusers will come out of Iowa’s Unemployment Compensation Trust Fund. The Trust Fund is funded by part of the state unemployment tax levied on Iowa’s employers. Each year Iowa Workforce Development sets the average contribution rate for Iowa employers based on what is needed to keep the Trust Fund afloat and have sufficient reserves to ensure solvency through periods of high unemployment claims. HF 902’s amendments to Iowa’s unemployment compensation law will be a drain on the Trust Fund. If that drain is large enough, it may result in a higher unemployment tax rate for all Iowa employers in future years. Unfortunately, we don’t have an estimate of the cost of HF 902 because there was no time to get one.
Will HF 902 be challenged in court? If so, what will such a challenge be and will it be successful? We don’t know but we haven’t heard anything about this yet. The law had bipartisan support and there are things in it that both employers and employees can like.
How can employers comply with HF 902 and other federal laws mandating the COVID-19 vaccine that seem to conflict with HF 902? Those federal laws include the June 2021 Occupational Safety & Health Administration’s emergency temporary standard (ETS) for healthcare employers, President Biden’s September 2021 Executive Order 14042 for federal contractors and subcontractors, the impending OSHA ETS for employers with 100 or more employees, and the impending regulation from the Centers for Medicare and Medicaid Services that will apply to entities paid through Medicare and Medicaid. We don’t know. Federal law often pre-empts state law, so that probably puts compliance with federal law as a higher priority. However, states can have laws that are more protective than federal law. Whether HF 902 is more protective than the federal laws listed above, or less, depends on one’s perspective.
There are rumblings about yet another special session in 2021, where more COVID-19 vaccine issues may be on the table. If that doesn’t happen, there’s little doubt but that this topic, and perhaps some of the issues identified in this post, will be revisited in the regular 2022 session, which begins in January.
There’s one thing we know: The pandemic isn’t getting any easier in the employment arena.
Shareholder Attorney Jill Jensen-Welch practices primarily in employment law and civil litigation. She serves clients ranging from small start-ups to large national companies in a wide variety of industries.
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