On April 25, 2022, South Carolina enacted a statute aimed at curtailing employers’ ability to require workers to be vaccinated against COVID-19. To start, the Act absolutely bans state and local governments from requiring vaccination against COVID-19 as a condition of employment, attendance, or participation.
The Act also curtails the rights of private businesses to require mandatory vaccination against COVID-19. Private employers are prohibited from requiring independent contractors and non-employee vendors to receive vaccination against COVID-19 in order to maintain the business relationship. All religious and medical exemption requests “must be honored regarding any COVID-19 vaccine or booster requirement.” Medical exemptions are expressly defined to include conditions that go far beyond the requirements of the ADA, such as “the presence of antibodies, a prior positive COVID-19 test, or pregnancy.” To claim a religious exemption, an employee need only provide “a short, plain statement attesting to the fact that a tenet of his deeply held religious convictions would be violated by receiving the COVID-19 vaccine and booster.” Finally, the Act prohibits “places of public accommodation” from discriminating against any individual “on the basis of the person’s vaccination status.” Places of public accommodation include a variety of businesses, including “any hospital, clinic, or other medical facility that provides overnight accommodations.”
The new law contains exemptions for federal contractors and Medicare and Medicaid participating health care providers subject to federal vaccination mandates. Presumably, these exceptions were added to avoid litigation over federal preemption of inconsistent state laws.
Practically, employers in South Carolina can no longer enforce a worker vaccination requirement. Employees are entitled to a medical exemption if they have been infected with COVID-19 at any point in the past and a religious exemption if they simply claim that vaccination violates some unspecified religious belief. Employers may further run afoul of the act if they attempt to take any step to substantiate such exemption requests. To avoid the potential for litigation, employers in South Carolina may consider reverting to a voluntary vaccination policy and perhaps including incentives to encourage worker vaccination against COVID-19.