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Client Alert- Preparing for Exceptions To Your Business’s COVID-19 Vaccine Program.

Dec 15, 2020
  • FisherBroyles News

As the country prepares for the long-awaited distribution of COVID-19 vaccines, employers need to start thinking now about how they will handle requests for accommodations, based on a disability or religion, in response to employer vaccine programs.

Let’s start here: if history serves as precedent, employers likely can require that employees become vaccinated against COVID-19.  After all, the Equal Employment Opportunity Commission (“EEOC”) tackled the issue of whether employers can mandate employee flu vaccines. While the EEOC takes the position that employer should encourage—rather than require their employee to get a flu shot—the bottom line is that employers can establish vaccine mandates.

Employers Must Consider Exceptions To Vaccine Mandates

Acceptable employee objections to COVID-19 vaccinations fall into two main categories: those based on sincerely held religious beliefs and those based on a disability.

If an employer requires or even highly encourages its employees to get the COVID-19 vaccine once it is widely available, it must remember that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on religion, and, if an employee’s religion prohibits a COVID-19 vaccine, the employer must consider an accommodation for that employee.

How does an employer determine a reasonable accommodation for a religious objection?

Under these circumstances, Title VII requires employers to engage in an informal, interactive process with an employee (or applicant) to determine whether the employer can accommodate the employee without undue hardship to the business. The employer certainly has good reason for wanting its employees to be vaccinated, i.e., to promote and maintain a safe and healthy workplace. But the company must discuss how to do so without violating an employee’s religious beliefs if an employee requests a religious accommodation.

Now, an employee’s objection to a vaccine based on religion must be based on an employee’s sincere belief that is at odds with taking the vaccine. During the interactive process, an employer can certainly question or contest a stated religious belief if it believes the employee is being untruthful or if the objection is actually based on religion. Moreover, social, political, or similar types of philosophies are not “religious” beliefs. Likewise, a personal belief against vaccines (e.g., “vaccination is wrong.” Or “it won’t work anyway.”) is not a religious objection.

If an employer doubts whether an employee’s stated religious belief is sincere, the EEOC encourages asking these questions[1]:

  • Has the employee behaved in a manner that is noticeably inconsistent with the professed religious belief?
  • Is the accommodation sought “a particularly desirable benefit that is likely to be sought for secular reasons”? or
  • Does the timing of the request render it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)?

But, generally, the interactive process focuses less on the sincerity of the individual’s beliefs and more on whether there is a reasonable accommodation available that won’t create an undue hardship for the business. An accommodation poses an undue hardship if it causes more than a small cost or difficulty on the employer’s business operations.

What about a medical objection to taking the COVID-19 vaccine?

The analysis is similar if an employee objects to an employer’s mandatory COVID-19 vaccine requirement. The Americans with Disabilities Act (“ADA”), and various state and local laws, requires employers to engage in an interactive process with an employee to determine reasonable accommodations that help an employee with a physical or mental health impairment perform the essential functions of the person’s job.

Yes, the employer can request certain medical information from an individual with a disability requesting an accommodation for the vaccine. But, as with requests for religious accommodations, employers are better served focusing on the accommodation rather than the underlying disability.

Similarly, the ADA also requires that the employer provide an accommodation unless doing so will create an undue hardship. However, the ADA raises the undue hardship bar, basing it on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.

Types of Accommodations To Vaccine Requirements

Earlier this year, the EEOC issued COVID-19 guidance explaining that an employee may be entitled to an exemption from a mandatory vaccination. Indeed, granting such an exemption from vaccination may be a “reasonable accommodation.”

Accommodations to either a disability or religion-based exemption to obtaining a COVID-19 vaccine may include those employees continuing to wear a mask at work even once the majority of employees are vaccinated; eliminating an employee’s marginal duties that require the person to be in the office or in the company of other employees or the general public; continued telecommuting; additional PPE; and revising other workplace policies.

Not all positions will lend themselves to accommodations, but employers must engage in the interactive process with employees and consider accommodations when an employee refuses a COVID-19 vaccine after an employer mandates or even highly encourages employees to become vaccinated against COVID-19.

 

For additional information or if you have questions, please contact employment partners Amy Epstein Gluck at [email protected], or Eric Meyer at [email protected].

 

 

[1] (https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftnref24)

 

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