Last Updated on December 16, 2021

Since COVID-19 vaccines first became available, several states have enacted laws that restrict or ban certain entities from mandating them or requiring proof that an individual has received one (also known as a “vaccine passport”) in order to be allowed entry or access to services.

Most of these bans and restrictions are generally pre-empted by the new federal Emergency Temporary Standard (ETS). The ETS requires all employers with 100 or more employees to implement COVID-19 vaccination or testing policies. The Occupational Safety and Health Administration (OSHA) issued the ETS on Nov. 5, 2021. However, a federal court has temporarily blocked that ETS from going into effect.

In addition, certain portions of these vaccine-related state laws may still apply even if the ETS does become effective. This is because the OSHA ETS does not preempt any “non-conflicting requirements of general applicability” that apply to “workers and nonworkers alike,” that “regulate workers simply as member of the general public,” and that are consistent with the federal standard. This Compliance Bulletin provides an overview of the state laws that currently restrict or prohibit COVID-19 vaccine mandates or passports.

What Employers Need To Think About Moving Forward

Employers with 100 or more employees should become familiar with, watch for updates on, and review their policies and procedures to ensure compliance with OSHA’s new ETS. All employers with at least 15 employees should become familiar with EEOC guidance regarding how to comply with federal fair employment laws during the COVID-19 pandemic. All employers, particularly those with fewer than 15 employees, should become familiar and ensure compliance with all applicable state and local laws. Plans are enforced.

Stay up to date with the latest news regarding this topic by following our blog. This is an unfolding situation. MyHRConcierge will do our best to get you the most current information as quickly as possible.

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