On February 25, 2022, the Nebraska Legislature passed LB 906, which addresses COVID-19 vaccine mandates implemented by Nebraska employers. It allows for certain exceptions for employees who complete a form prepared by the Nebraska Department of Health and Human Services for medical or religious objections, and also permits employers to require wearing of masks and periodic testing at employer expense. The bill has an emergency clause which means that as soon as it is signed by the Governor, it becomes fully effective. The details of this new legislation are set out below.
The new COVID-19 vaccine mandate legislation applies to all private Nebraska employers regardless of size, as well as the State of Nebraska, government agencies and all political subdivisions. However, it should be emphasized that Nebraska employers in the healthcare industry are already subject to the Federal vaccine mandate applicable to healthcare employers, which will take precedence over the new Nebraska COVID-19 legislation. It should also be emphasized that LB 906 only applies to COVID-19 vaccinations, and no other employer mandated vaccinations.
The new law does not apply to the United States and other Federal agencies, Indian tribes, and bona fide private membership clubs exempt from taxes under the Internal Revenue Code.
It requires the Nebraska Department of Health and Human Services to develop a vaccine exemption form for individual employees to submit to claim an exemption from receiving a COVID-19 vaccine. The form is required to contain two separate potential declarations: (1) that a certified healthcare practitioner has provided the individual with a signed written statement that receiving a COVID-19 vaccine is medically “contraindicated for the individual”, or that “medical necessity” requires the individual to delay receiving a COVID-19 vaccination; or (2) receiving a COVID-19 vaccine would conflict with the individual’s “sincerely held religious belief, practice, or observance.”
Once this new law takes effect, any Nebraska employer that requires applicants or employees to be vaccinated against COVID-19 must allow for an exemption to the COVID-19 vaccine requirement for any individual who provides the employer with the completed vaccine exemption form, and for any individual claiming the exemption based upon the statement of a healthcare practitioner, a copy of the health practitioner’s signed written statement.
Nebraska employers may require any employee granted an exemption under this new law to be periodically tested for COVID-19 at the employer’s expense, and to wear and use masks or other personal protective equipment provided by the employer.
This differs substantially from recently proposed Federal vaccine mandate legislation as well as the current Federal vaccine mandate applicable to healthcare employers. Specifically, other vaccine mandates and proposed legislation provide(d) that an employee seeking to avoid the vaccination mandate and be granted an exception would assume the cost of periodic testing in order to be exempt from the vaccination requirement. Nebraska employers who desire to exercise their right to mandate COVID-19 vaccinations are now faced with bearing a considerable cost of periodic testing for employees who submit the exemption form. Business organizations and the Chambers of Commerce were opposed to this provision, but were unsuccessful in keeping it out of the final version of LB 906.
Given that the COVID-19 outbreak is waning, and with much of the population already vaccinated, or immune due to having had COVID, this Legislation may just be a solution in search of a problem. However, the Legislation passed by a vote of 37-5, with 5 abstentions, so there was obviously a strong feeling among the majority of Senators in the Nebraska Legislature that a law limiting employer COVID-19 vaccine mandates was required at this time.
It will be interesting to see how this new law develops, and how many Nebraska employers determine that they will either implement or continue an existing COVID-19 vaccination requirement. Employers in the healthcare industry are still covered by the Federal vaccine mandate applicable to healthcare organizations.
One interesting aspect is the fact that any employee who seeks to declare a religious exemption must simply fill in the form stating that receiving a COVID-19 vaccination would conflict with their “sincerely held religious belief, practice or observance.” There is no threshold requirement to establish such beliefs, which differs considerably from the law in the area of religious discrimination in employment, which requires that any individual seeking to assert a religious discrimination claim establish or prove that they are actually a member of a particular religion, and an active participant in the particular religion’s practices and activities. For purposes of the new law on COVID-19 vaccinations in Nebraska, it is clear that an employee seeking an exemption must simply fill out the form and include that particular section in seeking an exemption.
As noted above, LB 906 has an emergency clause, so it will go into effect as soon as it is signed by the Governor, which will likely be early in the week of February 28th. Therefore, any Nebraska employer that currently has a COVID-19 vaccination mandate or is considering implementing one, should take immediate steps to comply with this new Nebraska law.