As the COVID-19 pandemic continues, employers are having to find balances between productivity and worker health. Namely, workplaces are pondering whether COVID-19 vaccination should be a condition of employment.<\/p>\n\n\n\n
The White House attempted to mandate vaccinations to make this decision for certain private employers, but that effort has been delayed. When the Occupational Safety and Health Administration (OSHA) announced the details of its COVID-19 vaccination and testing mandate<\/a>, it was immediately challenged in the courts and effectively halted until further notice.<\/p>\n\n\n\n Although the rules sit in legal limbo, some employers have taken it upon themselves to get their workplaces vaccinated anyway\u2014earning praise from the White House, which has urged all employers to do the same. As such, many employers are currently deciding whether and how to mandate COVID-19 vaccinations among their employees.<\/p>\n\n\n\n And while the OSHA mandate may be on hold, other workplace laws are still in play, including those regarding accommodation requests. Employees must be allowed to request an accommodation for COVID-19 vaccination exemption\u2014just as they are allowed in the case of mandatory flu shots.<\/p>\n\n\n\n This article outlines how employers can handle COVID-19 vaccination accommodation requests.<\/p>\n\n\n\n Additionally, this article contains details that pertain to federal laws only, provided solely for example and informational purposes. State and local laws will <\/em>vary. This article is not intended as advice of any kind. Employers should contact legal counsel for advice on any of the information discussed herein.<\/em><\/p>\n\n\n\n There are two primary workplace laws that provide for employee accommodations: the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII). Both of these laws apply to employers with at least 15 workers.<\/p>\n\n\n\n The ADA compels employers to reasonably accommodate qualified employees with a disability unless doing so would cause an \u201cundue hardship\u201d on the organization or pose a direct threat to the safety of the employee or others in the workplace. Similarly, Title VII requires employers to accommodate employees\u2019 sincere religious beliefs, unless it would cause an undue hardship.<\/p>\n\n\n\n Given these employee protections, employers must tread carefully when determining whether to approve or deny an employee\u2019s accommodation request. Workplaces can use an interactive determination process to make an informed decision. But before that can begin, employers must set some policy groundwork, which involves determining legal obligations and drafting written rules.<\/em><\/p>\n\n\n [display_mode mode=”non-member-only”]TechServe Members login<\/a> <\/span>to access full article<\/strong>[\/display_mode]<\/p>\n\n\n [display_mode mode=”member-only”]<\/p>\n Before anything else, employers should know what their specific legal obligations are. For instance, the ADA and Title VII generally only apply to employers with 15 or more employees. If an employer with at least 15 workers receives a vaccination accommodation request, they should begin the interactive process.<\/p>\n Having accommodation policies in writing is a starting point for uniform enforcement. A sufficient written policy will clearly detail how an employee might request an accommodation, the various steps involved in the determination process and similar details.<\/p>\n To supplement policies, employers may consider reviewing job descriptions to ensure they include all workplace expectations and requirements, including COVID-19 vaccination or testing rules.<\/p>\n Note that the following process is only one potential avenue to follow when handling employee accommodation requests. Interactive processes will vary and be unique to each situation. The following information is provided for example purposes only and is not intended to be construed as legal or insurance advice.<\/em><\/p>\n The first step in reviewing an accommodation request is simply receiving the request. In terms of mandatory COVID-19 vaccinations, accommodation requests will likely be for exemption.<\/p>\n Accommodation requests can come in many forms; while an employee may fill out and submit an exemption form, a request doesn\u2019t need to be submitted in writing. Managers should be aware of this and know how to interpret an accommodation request when it is brought up by an employee. For instance, an employee may simply ask their manager if they can be exempt from the COVID-19 vaccination requirement. In other cases, a request may come from an employee\u2019s doctor or another associate; the request doesn\u2019t even need to include the words \u201creasonable accommodation.\u201d<\/p>\n While each organization may have slightly differing procedures for handling accommodation requests, below is an overview of the general steps.<\/p>\n When an employee submits a vaccine exemption request, it should first be reviewed to determine if it falls under the ADA or Title VII, as that will determine specific steps. This means ascertaining whether the request is due to a medical reason\/disability or a sincere religious belief.<\/p>\n When it comes to COVID-19 vaccinations, personal objections are generally not protected under workplace laws. If an employer receives such an accommodation request for vaccine exemption, they can reiterate the requirements of their workplace policy without taking further action toward honoring the request.<\/p>\n When an employer receives a request that appears legitimate, they can begin the interactive process for determining what accommodation, if any, will suit the employee\u2019s circumstances.<\/p>\n The first step to this process is typically speaking with the employee, their health care provider or religious leader (as applicable) to get more information about the employee\u2019s situation. This good-faith effort is intended to help find the best accommodation possible.<\/p>\n During this process, employers might ask the employee for documentation attesting to an employee\u2019s medical condition. Alternatively, for a religious accommodation, an employer might ask an employee for a written explanation of their religious beliefs.<\/p>\n Note that this subsection pertains to <\/span>medically related accommodation requests<\/strong> <\/span>only, not religious. See the following subsection for religion-related requests.<\/em><\/p>\n After collecting evidence attesting to an employee\u2019s medical condition, employers will need to determine if the circumstances satisfy the ADA\u2019s accommodation requirements. For the purposes of ADA eligibility, an<\/p>\n employee must be a \u201cqualified individual with a disability.\u201d The ADA defines a disability generally as \u201ca physical or mental impairment that substantially limits one or more major life activities.\u201d<\/p>\n The following are examples of medical conditions that may be considered disabilities:<\/p>\n Additionally, the Equal Employment Opportunity Commission (EEOC) maintains a <\/span>list of questions<\/a> <\/span>related to ADA accommodations that may help employers in this area. The agency also has guidance <\/span>regarding disability discrimination<\/a> <\/span>that may be helpful for employers.<\/p>\n Note that this subsection pertains to <\/span>religion-related accommodation requests<\/strong> <\/span>only, not medical. See the previous subsection for medically related requests.<\/em><\/p>\n After collecting evidence attesting to an employee\u2019s religious convictions, employers will need to determine if the circumstances satisfy Title VII\u2019s accommodation requirements. Under Title VII, employers need only accommodate \u201csincerely held\u201d religious beliefs. Given this broad definition, it\u2019s typical for employers to err on the side of caution and assume an employee\u2019s expressed religious sentiments are sincerely held.<\/p>\n However, if an employer has an objective basis for questioning an employee\u2019s religious beliefs, they may request the employee provide additional supporting information.<\/p>\nAccommodation Policy Groundwork<\/h2>\n\n\n\n
Determining Employer Obligation<\/h2>\n
Establishing a Written Policy<\/h2>\n
Interactive Process Overview<\/h1>\n
Reviewing Vaccine Exemption Requests<\/h2>\n
Starting the Interactive Process<\/h2>\n
Determining ADA Eligibility<\/h2>\n
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Determining Title VII Eligibility<\/h2>\n