Although West Virginia Governor Jim Justice has actively pushed for residents to get vaccinated—most notably, through his statewide “Do It For Babydog” sweepstakes—he has voiced opposition to COVID-19 vaccination mandates and new masking initiatives.

On October 22, 2021, Governor Justice approved House Bill (HB) 335, which addresses COVID-19 immunization requirements for employment in the public and private sectors. The West Virginia Legislature passed HB 335 last month by a vote of 68–30 in the House of Delegates and by a narrow vote of 17–16 in the Senate. The legislation permits an eligible employee or prospective employee to be exempted from having to comply with a COVID-19 vaccination mandate of a covered employer as a condition of continued employment or hire by presenting:

  • a notarized certification executed by a licensed physician or advanced practice registered nurse stating that a medical exemption is required due to the individual’s physical condition or a specific precaution or because the individual has COVID-19 antibodies from a previous infection or has recovered from COVID-19; or
  • a notarized certification executed by the individual stating that he or she holds religious beliefs that prevent him or her from taking the COVID-19 vaccination.

Once provided with such a certification, a covered employer “shall not be permitted to penalize or discriminate against [the] current or prospective employee[] … by practices including, but not limited to, benefits decisions, hiring, firing, or withholding bonuses, pay raises, or promotions.”

The law will take effect on January 18, 2022, and it is not retroactive. Any enforcement of COVID-19 vaccination mandates by employers before this date will not be subject to this new law.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

Employers interested in learning about federal vaccination requirements, including the Occupational Safety and Health Administration’s (OSHA) newly issued COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), may wish to join us for our upcoming webinar, “It’s Here—OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard,” which will take place on Tuesday, November 9, 2021, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Melissa A. Bailey and John F. Martin, will discuss the key provisions of the ETS. Register here.


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