HB4012 S JUD AM #1 3-9
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER INFECTIOUS DISEASES.
§16-3-4b. Required exemptions to compulsory immunization against COVID-19 as a condition of employment; effective date.
(a) A covered employer, as defined in this section, that requires as a condition of continued employment or as a condition of hiring an individual for employment, that such person receive a COVID-19 immunization or present documentation of immunization from COVID-19, shall exempt current or prospective employees from such immunization requirements upon the presentation of one of the following certifications:
(1) A certification
presented to the covered employer, signed by a licensed physician
pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of
this code or an or a licensed advanced practice registered nurse licensed
pursuant to the provisions of §30-7-1 et seq. of this code who has
conducted an in-person examination of the employee or prospective employee,
stating that the physical condition of the current or prospective employee is
such that a COVID-19 immunization is contraindicated; there exists a specific
precaution to the mandated vaccine; or the current or prospective employee has
developed COVID-19 antibodies from being exposed to the COVID-19 virus, or
suffered from and has recovered from the COVID-19 virus; or
(2) A notarized certification executed by the employee or prospective employee that is presented to the covered employer by the current or prospective employee that he or she has sincerely held religious beliefs that prevent the current or prospective employee from taking the COVID-19 immunization.
(b) A covered employer
may not be permitted to penalize or discriminate against current or
prospective employees for exercising exemption rights provided in this section
by practices including, but not limited to, benefits decisions, hiring, firing,
or withholding bonuses, pay raises, or promotions.
(c) As used in this section, the following terms shall have the following meaning:
(1) “Covered employer” shall mean means: (A) (1) The State of West Virginia, including any
department, division, agency, bureau, board, commission, office, or authority
thereof, or any political subdivision of the State of West Virginia including,
but not limited to, any county, municipality, or school district; (B) (2) A business entity, including without
limitation any individual, firm, partnership, joint venture, association,
corporation, company, estate, trust, business trust, receiver, syndicate, club,
society, or other group or combination acting as a unit, engaged in any
business activity in this state, including for-profit or not-for-profit
activity, that has employees; (2) (4) “COVID-19” shall mean means
the same as that term is defined in §55-19-3 of this code; or (3) (5) “Immunization” shall mean means
any federally authorized immunization for COVID-19, whether fully approved or
approved under an emergency use authorization.
(d) The provisions of this section are inapplicable to employees of covered employers who are required to work in Medicare or Medicaid-certified facilities which are subject to enforceable federal regulations contrary to the requirements of this section.
(d) (e) Any person or entity harmed by a violation
of this section may seek injunctive relief in a court of competent jurisdiction. (e) (f) The provisions of this section shall
become effective immediately. (f) (g) Pursuant to §2-2-10 of this code, if
any provision of this section or the application thereof to any person or
circumstance is held unconstitutional or invalid, such unconstitutionality or
invalidity shall not affect other provisions or applications of the section,
and to this end the provisions of this section are declared to be severable.
§16-3-4c. Prohibiting proof of COVID-19 vaccination.
(a) As used in this section:
(1) “COVID-19” has the same definition as provided in §55-19-3 of this code;
(2) “Hospital” has the same definition as provided in §16-5B-1 of this code;
(3) “Immunization” has the same definition as provided in §55-19-3 of this code;
(4) “Proof of vaccination” means physical documentation or digital storage of protected health information related to an individual’s immunization or vaccination against COVID-19; and
(5) “State institution of higher education” has the same meaning as provided in §18B-1-2 of this code.
(b) A state or local governmental official, entity, department, or agency may not require proof of vaccination as a condition of entering the premises of a state or local government entity, or utilizing services provided by a state or local government entity: Provided, That if any federal law or regulation requires proof of vaccination as a condition of entering the premises, the provisions of this subsection shall not apply: Provided, however, That this prohibition does not apply to any local government-owned facility that is leased to a private entity where the local governmental unit primarily serves as a property owner receiving rental payments.
(c) A hospital may not require proof of vaccination as a condition of entering the premises: Provided, That if any federal law or regulation requires proof of vaccination as a condition of entering the premises, the provisions of this subsection shall not apply.
(d) A state institution of higher education may not require proof of vaccination as a condition of enrollment or for entering the premises: Provided, That if any federal law or regulation requires proof of vaccination as a condition of entering the premises, or if the academic requirements of a particular program cannot be met without vaccination and proof thereof, the provisions of this subsection shall not apply.