Navigating Medical and Religious Exemptions
President Biden announced vaccination requirements for the federal government in July and called on the private sector to do more to encourage vaccination as well. Since then, jobs requiring vaccination are up 90% and employers with 100+ employees are in limbo on a pending rule mandating workplace vaccinations (President Biden’s covid-19 plan, 2021).
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated, or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The rule also requires employers to provide paid time off for the time it takes for workers to be vaccinated or to recover if they experience post-vaccination side effects. The requirement will impact more than 80 million workers in the private sector.
Employers are asking what they can do if workers refuse. Some employers are firing workers who won’t get the vaccine and others are requiring weekly testing or other safety precautions. Employers implementing mandatory COVID-19 vaccination programs must manage, and in some cases, accommodate exemption requests. Legal exemptions from mandatory vaccination include medical exemptions under the Americans with Disabilities Act (ADA) and exemptions based on sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state laws for both federal statutes).
How do employers handle these requests and ensure compliance?
STEP 1: Determine whether the employer is covered by the ADA and Title VII
All employers, including state and local government employers, with 15 or more employees are covered by the ADA and Title VII. The exception may be tribal entities such as tribal government, tribal casinos, and tribal investment operations.
STEP 2: Ensure that a policy and procedure exist for handling accommodation requests
Organizations should implement or review policies and procedures for handling requests for medical and religious accommodations. Existing job descriptions should also be reviewed to confirm they include all aspects of the job and include any requirements for mandatory vaccinations.
STEP 3: Determine whether the employee has a disability under the ADA
For ADA accommodations, the employee should be asked to provide appropriate documentation from their health care provider regarding the nature of any impairment(s), the duration of the need for accommodation and the extent to which the impairment(s) conflict with the employer’s vaccination requirement. Follow the typical Interactive Process for all ADA accommodation requests.
STEP 4: Determine whether the employee has a “sincerely held” religious belief
- Understand that the definition of religion is broad and protects beliefs and practices with which an employer may be unfamiliar.
- The religious belief must be “sincerely held” according to the Equal Employment Opportunity Commission (EEOC), and employers are supposed to start out with the assumption that the employee’s religious belief is sincere.
- The employee should be asked to provide a written statement explaining their objection to the vaccine. Employers can request supporting documentation from the employee’s religious leader such as a priest or rabbi, but avoid using this as a sole decision-maker because the EEOC does not require that an employee has to belong to an organization to follow the beliefs, and the employee need not be required to attend gatherings or services as proof.
- Employers should also consider follow-up interviews. One purpose of the interview is to be fair to employees who have legitimate religious objections but are less adept at expressing themselves in writing. The other purpose is to “weed out” the employees who are faking it.
- There may be a few situations in which a religious group’s official position provides an “objective basis” for questioning an employee’s request. The United States District Court of Massachusetts recently upheld a public university’s decision to deny a student’s request in which the student did little more than assert she was a Catholic. She was given the opportunity to provide more information about the religious basis for her request but did not. Therefore, school officials relied on a public statement from the U.S. Conference of Catholic Bishops saying vaccination was “morally justified” (Melcon, 2021).
STEP 5: Document, Document, Document!
Documenting reasons for denials is equally important as documenting approvals in case the employer needs comparative evidence. Documentation should include the employee’s request, supporting information, reason for determining whether or not the request was religious in nature, the reason for determining whether the employee’s belief is “sincere”, and any other information that might come in handy in the event of a legal challenge.
Finally, in addition to having solid policies and procedures, employers may want to consider doing any or all of the following:
- Develop vaccination education campaigns.
- Make obtaining the vaccine as easy as possible for employees.
- Cover any costs that might be associated with getting the vaccine.
- Provide incentive to employees who get vaccinated (ensure compliance with HIPAA)
- Provide paid time off for employees to get the vaccine and recover from any potential side effects.
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- Melcon, J. T. (2021, September 8). COVID-19 Vaccine Mandates: Can Employers Deny Religious Exemptions Because Employees’ Religious Leaders Support Vaccination? [web log]. Retrieved September 21, 2021, from https://shermanhoward.com/covid-19-vaccine mandates-can-employers-deny-religious-exemptions-because-employees-religious-leaders support-vaccination/
- Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace | Occupational Safety and Health Administration. (n.d.). Retrieved September 21, 2021, from https://www.osha.gov/coronavirus/safework/
- The United States Government. (2021, September 9). President Biden’s covid-19 plan. The White House. Retrieved September 21, 2021, from https://www.whitehouse.gov/covidplan/
- What you should know About COVID-19 and the Ada, the Rehabilitation act, and Other EEO Laws. U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved September 21, 2021, from https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada rehabilitation-act-and-other-eeo-laws/