Tips For Employers In Handling Employee COVID Vaccination Refusals
In order to promote the health and safety of their workforce and others, many employers have implemented, or are considering implementing, policies requiring employees to receive the COVID-19 vaccine as a condition of employment. These employers often face significant resistance from a subset of employees who – for a variety of reasons – do not want to be vaccinated.
While governors in a small number of states have issued executive orders prohibiting private employers from implementing employee vaccine mandates, generally speaking, an employee’s mere personal objection to receiving the COVID-19 vaccine is not legally protected. However, employers in every state who are seeking to enforce a mandatory vaccination policy are legally required to consider an employee’s request to be exempted from the employer’s vaccination requirement to the extent that the request is based on the employee’s disability or sincerely held religious belief.
In order to minimize the risk of a potential discrimination claim, employers must be aware of their obligations under federal and state laws to provide reasonable accommodations based on an employee’s disability or religion, and employers should follow specific protocols when faced with such a request.
Under state and federal anti-discrimination laws, employers can be required to make exceptions or modifications to their general employment policies and practices (including COVID-19 vaccination mandates) where an employee requests such an exception or modification as a reasonable accommodation for the employee’s disability or sincerely held religious belief.
In this regard, employers with fifteen (15) or more employees are covered by Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). (The Rehabilitation Act of 1973 imposes requirements similar to those of the ADA for some employers, including federal contractors.) State laws frequently extend these anti-discrimination mandates to smaller employers.
In addition to prohibiting employers from discriminating against applicants or employees on the basis of disability, the ADA requires employers to provide reasonable accommodations that would allow individuals with disabilities to perform the essential functions of their jobs. An accommodation is not considered reasonable if granting the accommodation would create an undue hardship for the employer or pose a direct threat to the health and safety of the employee or others.
Additionally, Title VII prohibits employment discrimination based on religion and requires employers to accommodate employees’ sincerely held religious beliefs or practices, unless the requested accommodation would impose an undue hardship on the employer. (Notably, the burden for demonstrating undue hardship is lighter for an employer in the context of accommodating an employee’s religious beliefs than with respect to accommodating an employee’s disability.)
Requests For Accommodations
Particularly given the current climate with regard to the COVID-19 vaccine, employers with mandatory vaccination policies need to anticipate – and be prepared to evaluate – requests for accommodations. In particular, with regard to accommodation requests based on medical or religious reasons, employers must ensure that they handle such requests without running afoul of the applicable federal and state anti-discrimination laws.
As a best practice, the federal Equal Employment Opportunity Commission (“EEOC”) recommends that an employer introducing a mandatory COVID-19 vaccination policy notify all employees that the employer will consider requests for reasonable accommodations on an individualized basis and outline the process for making such requests. Employers should also educate managers and supervisors about how to recognize an accommodation request based on disability or religious beliefs and practices and to whom any such requests should be referred.
Although employers are not legally required to do so, it is a best practice to ask employees to put any requests for accommodations in writing. This practice can be particularly helpful should the employer’s compliance ever be questioned in litigation.
Consistent with best practices related to properly documenting all accommodation requests, employers should prepare an accommodation request form and provide a copy of the form to any employee who is requesting a medical or religious accommodation. These forms should specify the information that the employer needs to evaluate the request.
For disability-related accommodation requests, the request form should specify the information needed from the employee’s healthcare provider, such as the nature, severity, and duration of the employee’s medical condition, the limitations caused by the medical condition, the specific accommodation requested, the reason the requested accommodation is needed, and the expected duration of the need for the accommodation.
For accommodation requests based on the employee’s sincerely held religious beliefs, the accommodation form should contain a section for the employee to explain why he or she is requesting a religiously-based exemption from the vaccination requirement.
The Interactive Process
Once the employer receives an employee’s exemption request, or learns by any other means of the employee’s need for an accommodation, the employer becomes obligated to engage in the “interactive process” with the employee. The interactive process involves discussing what accommodation, if any, may be appropriate for both the employee and the employer.
It is important to note that the employer is not legally required to grant the employee the exact accommodation the employee is requesting (e.g., that the employee should be allowed to continue working unvaccinated without any other changes to the employee’s working conditions). The employer does, however, need to consider if there is a way to grant an exemption from the vaccination policy that would allow the employee to perform the essential functions of his or her position without putting an undue burden on the employer and its business, and without creating a “direct threat” to the health and safety of the employee or others. The employer must engage in conversations with the employee to discuss these issues and explore potential accommodations. Examples of a reasonable accommodation for an unvaccinated employee entering the workplace may include, for example, wearing a face mask; working at a certain distance from coworkers or non-employees; working a modified shift; getting tested for COVID-19 on a regular basis; working remotely; and/or being reassigned to another position/location.
As part of this interactive process, the employer should document all conversations with the employee, including the employee’s accommodation requests, and any accommodations that the employer offered to the employee (as well as the employee’s responses). If necessary, an employer may request additional information to support the employee’s need for a reasonable accommodation. This may include additional information from an employee’s healthcare provider or a statement from the employee’s religious leader/organization, if an employee indicates that an exemption request is based upon his or her religion’s official doctrines.
Generally, an employer should assume that a request for a religious accommodation is based on sincerely held religious beliefs. Relevant EEOC guidance and court decisions make clear that – for the purposes of anti-discrimination law – a religious belief or practice may be “sincerely held” by an individual even if it is newly adopted, not consistently observed, or different from the official or commonly followed tenets of the individual’s religion. However, if an employer has an objective basis for questioning the sincerity of the employee’s religious belief or practice – for instance, if an employee has privately told coworkers that he or she is an atheist – the employer may seek additional information demonstrating the sincerity of the employee’s professed religious beliefs.
Does The Proposed Accommodation Create An Undue Hardship?
As stated above, even if an employee has made a valid exemption request due to a disability or a sincerely held religious belief or practice, an employer is not required to provide any accommodation that would cause an undue hardship on the employer’s business or create a direct threat to the health of the employee or others. Examples of such undue hardships may include, but are not limited to, causing a lack of necessary staffing, jeopardizing the security or health of employees, significantly increasing costs incurred by the employer, or violating a seniority system.
Though it is likely that the “direct threat” standard will eventually be tested in the courts with regard to COVID-19 vaccination, it is fairly certain that the standard cannot be used as an automatic bar to all exemption requests. In other words, it is unlikely that an employer would be able to maintain that any unvaccinated person poses a direct threat to others and deny all exemption requests on that basis.
The applicability of either the undue burden or the direct threat analysis to any particular accommodation request is highly fact-specific. Therefore, employers should proceed with caution and request the advice of legal counsel before denying an accommodation request on either of these bases.
Communicate Decision To Employee
After the employer decides whether or not to grant an accommodation request, the next step is communicating this decision to the employee. The employer should inform the employee what accommodations, if any, are available and the details, parameters, and likely duration of such accommodations.
The employer also may need to continue the interactive process with the employee periodically through the course of the accommodation to ensure that it is working for both the employee and employer. For example, if an employee has been granted a vaccination exemption for medical reasons, and a new vaccine later becomes available that is determined to be safe for individuals with the employee’s medical condition, the employer may then be able to require that the employee receive that new vaccine. Similarly, if an employee is given a modified work schedule as an accommodation but later becomes unable to continue that modified schedule, the employer may need to discuss with the employee whether any other potential accommodations are available.
In any such situation, it is important that the employer ensure that the communications are appropriately documented and that any decision regarding a change in accommodations is communicated to the employee is writing.
* * *
If you have any questions about issues relating to COVID-19 vaccination policies or accommodation requests, please contact one of our experienced labor and employment attorneys.