Some private employers in Ohio have been implementing a vaccine mandate or strongly encouraging their employees to receive the vaccine in hopes to bring the workplace back to a sense of normalcy. These policies are permissible by Ohio and federal law as long as exceptions are made for individuals with recognized disabilities and religious beliefs (for more on the current Ohio and federal law on this topic, see my previous blog post).
However, House Bill 248 would flip the current law on its head by expanding the aforementioned exceptions and prohibiting private and public entities from distinguishing between unvaccinated and vaccinated individuals. Essentially, House Bill 248 allows for the individual to choose whether to comply with any entities' vaccination requirement.
House Bill 248, known as the Vaccine Choice and Anti-Discrimination Act ("the Act"), seeks to enact a new section of the Ohio Revised Code that expands an individual's rights in denying the COVID-19 vaccine (and all other vaccines to boot). The Act allows individuals to decline a vaccine through a written statement or verbal declaration as long as one of the following reasons is provided: (a) medical contraindications; (b) natural immunity; and (c) reasons of conscience, including religious convictions.[1] These categories are not defined by the Act and in theory, an employee could give any reason for denying a vaccine as a "reason of conscience." Further, these reasons greatly expand upon the exceptions provided by current law which requires an individual to have a recognized disability pursuant to the Americans with Disabilities Act or a sincere religious belief, practice, or observance that equate to that of traditional religious views pursuant to Title VII of the Civil Rights Act of 1964 and the Ohio Civil Rights Act.
The Act also puts additional burdens on businesses and requires the business to inform their employees and/or customers that the individual can decline the vaccine for the above reasons as provided in the Act in the same manner that the vaccine requirement is communicated.[2]
Additionally, the Act addresses vaccine passports and how some businesses currently have a policy that allows for vaccinated individuals to be unmasked but requires unvaccinated individuals to still wear a mask (for more on the current law on vaccine passports, see my previous blog post). The Act prevents discrimination on the basis of vaccine status and prohibits a business from distinguishing between vaccinated and unvaccinated individuals in any form.[3] If the Act becomes law, businesses would have to change their mask policy to be unified: either everyone wears a mask or everyone does not wear a mask regardless of vaccination status. Businesses would also no longer be able to ask for individuals' vaccination cards upon entry.
This bill was introduced on April 6, 2021 and was referred to the Ohio House Health Committee on April 14, 2021. The first hearing in front of the Ohio House relating to the Act occurred on May 18, 2021. The bill must be approved by both chambers of the Ohio legislature and signed by the governor to become law. Nevertheless, this bill and other developments in the law demonstrate that businesses and consumers alike need to be vigilant – monitoring changes in consumer, employment, and other areas of the law as local, state, and federal governments continuously work to respond to the pandemic and return to normal life.
Any businesses considering certain actions should contact counsel to determine applicable risks, especially as rules and regulations continue to change. Faruki lawyers have stayed up to date regarding the changing policies on the COVID-19 vaccine and are experienced at assisting businesses with navigating these issues.
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[1] R.C. 3792.02(B)(3)(a)-(c).
[2] R.C. 3792.02(C)(1)-(C)(2)(c).
[3] R.C. 3792.02(D)(1).
