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Nebraska Imposes COVID-19 Vaccine Exemption Requirements On Employers

A new Nebraska law, passed as Legislative Bill 906 and signed by Governor Pete Ricketts, requires Nebraska employers who mandate COVID-19 vaccinations to grant religious and medical exemptions to most applicants and employees seeking such exemptions.

The new law reaches more employers and employees than the medical and religious exemption requirements under federal law (e.g., the Americans with Disabilities Act and Title VII of the Civil Rights Act) and current state law (the Nebraska Fair Employment Practice Act).

Notably, employers with one or more employees (as opposed to 15 or more under current federal and state law) are covered under the law. Other covered employers include the State of Nebraska, governmental agencies, and political subdivisions. The law excludes the federal government, Indian tribes, and private membership clubs (other than labor organizations) exempt from taxation under Internal Revenue Code 501(c).

Covered employers must grant a religious exemption to employees who merely complete the Nebraska Department of Health and Human Services (“NDHHS”) vaccine exemption form, available here. The form states that receiving the vaccine would conflict with the employee’s sincerely held religious belief, practice, or observance. No actual description or other information about the basis for the claimed religious belief is necessary or, apparently, may be requested. Employers also must grant a medical exemption to employees who complete the NDHHS form and submit a copy of a signed written statement by a health care practitioner that receiving the vaccine is medically contraindicated for the individual or medical necessity requires that the individual delay receiving the vaccine. Again, no information about the medical condition is required.

While employers may require employees who are granted an exemption to submit to periodic COVID-19 testing, unlike federal law, the employer must pay for the testing. Employers may also require exempt employees to wear personal protective equipment ("PPE").

Although the law may make it easier for employees seeking an exemption, it concedes that certain employers may be subject to more stringent exemption-request frameworks under federal law. Particularly, Medicare-certified or Medicaid-certified providers or suppliers and federal contractors may require additional processes, documentation, or accommodations as necessary to comply with federal law and the Centers for Medicare and Medicaid Services ("CMS").

The Labor and Employment team at McGrath North is available to assist Nebraska employers in determining whether the new law applies to them and, if so, to update their current COVID-19 vaccination policy accordingly.