Vaccine mandates have been all the talk lately. You will need to be prepared to respond to employee requests for vaccine mandate exemptions and engage in the interactive process. Are you ready? Is your business setting up its own mandatory vaccination policy? Are you in the healthcare industry? Do you employ 100+ employees? If so, you will be subject to OSHA’s Emergency Temporary Standards mandating vaccines, or you are a federal contractor subject to Executive Order 14042. If you need extra guidance on this mandate please contact Innovative right away!
Engaging in the Interactive Process
Even though vaccine mandates are just that – mandatory – the law still requires employers to grant a reasonable accommodation for a medical condition (under the Americans with Disabilities Act) or a sincerely held religious belief, practice, or observance (under Title VII), unless the accommodation would pose an undue hardship to the employer. In most cases, employees are expected to make their accommodation needs known; however, they do not need to specifically use the words “reasonable accommodation” to trigger an employer’s obligation to engage in the interactive process. Further, an accommodation request need not be in writing.
After an employee makes a request for accommodation (either verbal or written), the employer is required to “engage in the interactive process” with the employee. In other words, the employer must sit down with the employee to identify possible accommodations that would meet the employee’s needs without causing undue hardship to the employer. There may be cases in which the employer and employee are unable to come to a resolution, but federal courts continue to hold that the employer has a duty to make a good faith effort to arrive at an accommodation through the interactive process.
An employer is not required to automatically grant an employee’s request for a specific accommodation, such as telework. The employer may choose among several reasonable accommodations if the chosen accommodation is effective and enables the employee to continue performing the essential functions of their job. By the same token, employers are not free to dictate the terms of accommodations they are willing to make without the input of the employee involved.
For a COVID-19 vaccine exemption, potential reasonable accommodations include, but are not limited to, a requirement to wear a mask, work in a socially distant space, working a modified schedule, telework, reassignment, or periodic COVID testing.
Disability and Medical Conditions – Accommodations Under the ADA
Under the ADA, employers are required to provide a reasonable accommodation to employees who are not able to get vaccinated due to a medical condition or disability. For example, an employee who is allergic to ingredients in a vaccine may request an exemption from the vaccine mandate. An employer may request the employee to provide a medical certification from the employee’s healthcare provider that substantiates the need for a reasonable accommodation. However, be sure not to request an employee’s medical diagnosis or genetic information. Employers are not required to provide a reasonable accommodation under the ADA if it would pose an undue hardship. Under the ADA, this means that the accommodation would cause substantial operational difficulties or expense. Establishing an undue hardship under the ADA is difficult and an employer should consult with an employment attorney before denying a reasonable accommodation on this basis.
Sincerely Held Religious Beliefs – Accommodations Under Title V
Under Title VII, employees with a sincerely held religious belief, practice, or observance conflicting with getting the COVID-19 vaccine may request an exemption and accommodation. As explained by the EEOC, the term “religion” as used in Title VII extends not only to traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also encompasses sincerely held religious beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Are you prepared to make accommodations for employee requests for vaccine mandate exemptions?
The US Supreme Court has made it clear it is not a court’s role (and by extension, neither an employer’s) to determine the reasonableness of an individual’s religious beliefs, and “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981).
The EEOC guidance states “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.” This means employers should generally not question whether an employee’s religious belief, practice, or observance is sincerely held. However, the EEOC also notes if an “employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.” If you find yourself questioning the sincerity of an employee’s claim, be sure to proceed cautiously and with guidance from an employment attorney due to the risk of perceived discrimination.
Some practices, like a holistic healthy lifestyle or personal belief a vaccine may do more harm than good, may be as rigorously followed as a spiritual practice but are not grounded in a religious belief. In these situations, the employee is not entitled to a religious accommodation under Title VII. Simply objecting to vaccinations in general will not meet legal requirements for an accommodation under federal law, but political beliefs or personal reasons for objecting to vaccines may be protected under state law.
Under Title VII, an employer must provide an accommodation unless doing so poses an undue hardship, which has been interpreted to mean the accommodation would require the employer to bear more than a de minimis cost or burden. Title VII’s undue hardship is less stringent than that under the ADA; however, employers should still seek guidance from an employment attorney before denying a religious accommodation.
Placing Employees on Indefinite Leaves of Absence as an Accommodation
Many employers think simply putting an employee on an indefinite leave of absence if they request an exemption is the way to handle an accommodation for a disability or religious belief. Not quite. An indefinite leave of absence is practically speaking a loss of employment for the employee – they are not getting paid and have no indication of when they will return to work. Employers taking this approach put themselves at risk of a claim for failure to engage in the interactive process.
Before simply putting unvaccinated workers on indefinite leaves, employers need to consider alternative accommodations allowing the employee to continue working (e.g., having the employee wear a mask, socially distance, telework, etc.). If after engaging in a meaningful interactive process with the employee, the employer determines it can only put the employee on a leave of absence, the employer should ensure its efforts have been thoroughly documented and consult with an employment law attorney before instituting the leave
Resources for Employers
To make sure you are prepared for employee requests for vaccine mandate exemptions we have provided a few resources. Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, and keep a roster of each employee’s vaccinations status. OSHA also released sample mandatory vaccination and testing/mask policies available for download. Employees may make vaccine accommodation/exemption requests for religious or medical reasons. Employers can download sample accommodation request letters and responses below.
- Accommodation Request Form – Medical Exemption From COVID-19 Vaccine
- Accommodation Request Form – Religious Exemption From COVID-19 Vaccine
- COVID-19 Vaccine Accommodation – Approval Letter
- COVID-19 Vaccine Accommodation – Denial Letter
Below we have included some implementation resources for you. These fact sheets can be distributed to employees.
Information for Employees on Penalties for False Statements and Records