On March 3, 2022, the Indiana General Assembly passed House Bill 1001, which restricts employer COVID-19 vaccine mandates. This legislation—which was controversial out of the gate—was toned down significantly by the Senate after it moved out of the House, largely in response to pressure from local business organizations. The final version of the bill was signed right away by Governor Eric Holcomb and is effective immediately. The law’s most notable provisions require covered employers to accept (under certain conditions) medical, religious, and acquired immunity exemptions from vaccine mandates, and to allow employees with exemptions to submit to COVID-19 testing in lieu of immunization.
Which Employers Do and Do Not Have to Comply
Generally speaking, all employers, regardless of size, must comply with the law with respect to their employees in Indiana. Under the law, the following employers are not subject to the law’s vaccine mandate restrictions:
- Federal employers
- Federal contractors
- Healthcare employers that receive Medicare and Medicaid funding (thereby reconciling the law with the Health and Human Services vaccine mandate for healthcare workers in Medicare/Medicaid facilities)
- Professional sports organizations and entertainment venues with respect to their employees who work closely with teams and entertainment at the venue
Definition of “Employee”
The law defines “employee” as “an individual who works for an employer on a full-time or part-time basis, either paid or unpaid.” Notably, the term “employee” is specifically deemed to include independent contractors, subcontractors, and student trainees or interns.
Employers covered by the law will be required to do the following:
- Accept a medical exemption from an employee who presents a signed note from a doctor, physician’s assistant, or advanced practice registered nurse stating that the vaccine is medically contraindicated for the employee (the medical provider must also have examined the employee).
- Accept an exemption for “acquired immunity” (as defined by the statute) for an employee who has tested positive for COVID-19 on a PCR test, antigen test, or antibody test within the last three months.
- Consider, in compliance with Title VII of the Civil Rights Act of 1964, an exemption for an employee who presents a statement indicating that the employee declines immunization because of a sincerely held religious belief. The Indiana Senate added the “in compliance with Title VII” language to the bill after the legislation moved out of the House. This added language may allow employers to utilize Title VII’s undue hardship standard when deciding whether a religious exemption request can be reasonably accommodated.
- Allow employees with exemptions to submit to COVID-19 testing no more than twice per week, in lieu of immunization.
- In any contracts, bid specifications, or agreements entered into after March 31, 2022, employers must not include any provision that would require an employee to receive a COVID-19 immunization in violation of this law.
The Law Does Not Require Employers to Pay for Employee Testing
The Indiana Senate made certain amendments to make the law more palatable to employers. For example, the House version of the bill required employers to pay for the testing of employees with exemptions. This language was removed in the version passed by the Senate, such that the law is now silent as to who pays for testing (thereby implicitly leaving this up to the employer).
While this law may still be perceived to infringe, to some extent, upon employers’ discretion to operate their businesses as they see fit, the law is considerably less restrictive on employers than the original version proposed by the House. Employers in the Hoosier State that have mandatory vaccination policies and that are subject to the law’s restrictions should consider whether they need to take steps to comply with the law, such as:
- Revising any mandatory vaccination policy to include the medical, religious, and acquired immunity exemptions set forth in the bill
- Ensuring that the human resources professionals reviewing these exemptions are trained on and familiar with the parameters of the exemptions (particularly the religious exemption, which permits an undue hardship analysis in conjunction with Title VII)
- Determining who is going to pay for the testing of exempted employees and communicating to employees that such testing will be at their own cost, should an employer decide to go this route
As a final note, the law also contains language that will allow the state to continue receiving enhanced federal funding for Medicaid and food assistance programs and allow children, ages five to eleven, to receive COVID-19 vaccinations outside a doctor’s office, without requiring the governor to continue issuing executive orders declaring a public health emergency. The current public health emergency had been scheduled to expire on March 4, 2022. By signing the legislation, Governor Holcomb avoided having to extend the public health emergency via another executive order.
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.