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Employers Take Note: Nebraska Law Now Mandates Certain Vaccine Exemptions

on Tuesday, 1 March 2022 in Covid-19 Information Hub

On February 25, 2022, the Nebraska Legislature passed Legislative Bill 906, which requires employers who mandate COVID-19 vaccinations to grant a vaccine exemption for medical or religious purposes. Governor Ricketts signed LB 906 on February 28, 2022 and it is now effective.

According to LB 906, any employer—public or private—that requires its job applicants or employees to be vaccinated against COVID-19 now must grant an exemption from vaccination for individuals who provide a completed vaccine exemption form, available from the Nebraska Department of Health and Human Services (“NDHHS”), seeking an exemption on the basis of a medical or religious basis. The simple, one-page form is now available and can be found here. An employer need not require the NDHHS form, although that does not alter the employer’s obligation to grant medical or religious exemptions under this new law.

In the vaccine exemption form, the individual must declare either: (1) that a health care practitioner has provided the individual with a signed written statement that, in the health care practitioner’s opinion, receiving a COVID-19 vaccine is either medically contraindicated for the individual or medical necessity requires the individual to delay receiving such vaccine; or (2) that receiving a COVID-19 vaccine would conflict with the individual’s sincerely held religious belief, practice, or observance. Those seeking an exemption for medical reasons must also provide the signed written statement from a health care practitioner identified in the completed form.

According to the statute, an employer may require its exempted employees to be periodically tested for COVID-19 at the employer’s expense. This change is significant because, up until now, employers have not been required to pay for testing. The statute also allows employers to require its exempted employees to wear or use personal protective equipment (“PPE”) provided by the employer. The Occupational Safety and Health Administration (“OSHA”) already requires employers to provide and pay for mandatory PPE; however, according to OSHA, a face covering is not considered to be PPE, but rather, a source control measure. Thus, even under this new law, an employer likely can still require its exempted employees to wear face coverings—with the exception of N-95 masks or more sophisticated respirators—at their own expense.

Additionally, the statute explicitly states that certain employers, such as Medicare-certified or Medicaid-certified providers or suppliers or federal contractors, may require additional processes, documentation, or accommodations to comply with their obligations under federal law and the rules and regulations of the Centers for Medicare and Medicaid Services (“CMS”). Thus, employers in the healthcare industry should take care to ensure they comply with any applicable CMS vaccine mandates, as those supersede Nebraska’s LB 906.

By now, employers are well-aware that the landscape surrounding COVID-19 vaccine mandates and policies is constantly shifting. Employers with mandatory COVID-19 vaccine requirements must now allow medical and religious exemptions, but can, at their discretion, require COVID-19 testing and mandatory PPE. However, employers with such policies should carefully consider how their employees might react to such a policy as well as how they will consistently enforce such a policy.

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