On March 3, 2022, Indiana joined several other states in imposing limits on employer COVID-19 vaccine mandate programs. Governor Holcomb signed House Bill 1001 into law, which prohibits private employers from mandating the COVID-19 vaccine unless they provide for individual exemptions based on medical reasons, religious reasons, and “natural immunity” from prior infection. The law defines “employee” to include full- and part-time employees, independent contractors, subcontractors and interns. An “employer” is any entity with at least one employee.

Notably, the prohibition does not apply to employees working in another state, employers that have entered into federal contracts with a vaccination requirement as a condition to receive funds, healthcare facilities subject to the federal CMS vaccine requirement, and professional sports or entertainment organizations or venues that provide accommodation in accordance with federal equal opportunity law.

How to Seek an Exemption

To seek an exemption based on medical reasons, the employee must submit a statement in writing from a licensed physician, physician’s assistant, or an advanced practice registered nurse who has examined the employee, stating that it is the medical professional’s opinion that the COVID-19 vaccine is medically contraindicated, or detrimental to the employee’s health.

To seek an exemption based on religious reasons, the employee must submit a statement indicating they decline the vaccine because of a sincerely held religious belief.

Lastly, if the employee seeks an exemption based on natural immunity, the employee must present the results of an FDA-approved lab test (such as PCR, antigen, or antibody/serology test) within at least the last three months. The employer may request the employee submit new test results no more than once every three months.

The employer may waive a requirement to present documentation for any of the above exemptions.

Further Inquiries

If an employer receives a completed exemption request based on medical reasons or natural immunity, the employer must grant the request “without further inquiry.” This poses a dilemma for employers subject to federal EEO law, in that EEOC guidance both anticipates that an employer may request information about medical exemption requests and forbids employers from relying on COVID-19 antibody tests.¹

In contrast, an employer that receives an exemption request based on religious beliefs is specifically instructed to analyze the request in compliance with Title VII of the Civil Rights Act of 1964. In other words, employers may use the undue hardship analysis under Title VII religious accommodation standards to analyze whether to grant an employee’s religious exemption request.

Testing

If an employee is granted an exemption based on medical reasons, religious reasons, or natural immunity, the employer may require the employee to submit to COVID-19 testing; however, they may not require the employee to test more than twice a week. The test must be one that is approved by the FDA and be the “least invasive testing option available.” Additionally, the test cannot create an undue burden on the employee. Notably, this statute does not specifically require employers to pay for such tests, but such obligations may exist under other applicable laws or collective bargaining agreements.

Key Takeaways for Employers

• Employers must grant medical and “natural immunity” exemption requests that meet Indiana’s statutory requirements.

• Employers may continue to analyze religious exemption/accommodation requests consistent with the Title VII undue hardship standard.

• Employers should be sure their vaccine mandate policies comply with Indiana law and their Human Resources staff is properly trained to administer the policy, noting that this may differ from the existing process for other types of accommodations.

• Employers may require exempted employees to take two COVID-19 tests a week as part of a reasonable accommodation, and should review any payment obligations related to the cost or time associated with such tests.