Vaccine: Exemptions in the Workplace
As COVID-19 vaccination mandates become increasingly common and given President Biden’s most recent sweeping vaccine mandate, we can expect exemption requests (and misuse) to become increasingly widespread. So the question becomes, how should employers handle such exemptions?
There are two kinds of exemptions:
Medical Exemption
Religious Exemption
Medical Exemption
Employees may request a reasonable accommodation that would exempt them from the vaccination requirement due to having a disability that places them at such a risk. Employers mandating the vaccine must ensure they take every effort to make reasonable accommodations under the Americans with Disabilities Act (ADA) because of an employee’s disability. The policy should require an employee to submit an affidavit supported by a statement by a licensed health care provider that outlines the medical reason for the exemption. When an employee claims there is a medical basis for an exemption, the employer is required to follow the interactive process outlined by the Americans with Disabilities Act (ADA). Employers must determine if the employee has a qualifying disability under the ADA and if a reasonable accommodation can be offered.
Currently there are very few absolute contraindications to the COVID vaccination. In an ideal world, medical exemptions would be limited to absolute contraindications. However, the courts have already seen some health care licensees willing to support COVID-19-related medical exemptions to vaccination mandates based on erroneous or nonexistent grounds, thereby fulfilling requests to circumvent COVID-related prevention measures.
Religious Exemption
An employee may object to receiving the vaccine mandated under the employer’s policy based on claiming a religious exemption. In this case, the employee would be seeking a request for an accommodation under Title VII. A religious exemption is based on the employee’s sincerely held religious belief, practice, or observance which prevents them from receiving the vaccine.
The EEOC says that once you know that an employee’s sincerely held religious belief prevents them from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an “undue hardship.” The EEOC cautions that employers should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.”
However, if the employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a belief, then the employer may be justified in requesting additional information. Factors that could undermine employees’ assertions include whether they have behaved in a manner markedly inconsistent with the professed belief, whether the timing of the request renders it suspect, or whether there are other reasons to believe the accommodation is not sought for religious reasons.
Once an employer determines that a true religious exemption exists, the employer must engage in the interactive process in order to make an accommodation for the employee. Such accommodations may include a more stringent mask requirement, periodic COVID testing, modifying work duties to comply with social distancing, adjusting an employee’s schedule, or allowing an employee work from home.
Final Word
This may sound like a tight rope employers must walk. You are not alone in thinking it is a lot to understand, administer, and process. It is integral that employers assess this on the basis of their own risk tolerance. Instituting a mandatory vaccine policy should be scrutinized from every angle and should involve the expertise of your human resources consultant.