Update Notice: This information was reviewed for accuracy on May 19th,2021. This update reflects new guidance for vaccinated individuals provided by the Equal Employment Opportunity Commission (EEOC) on May 13, 2021. This new information is in blue text in the second paragraph below.
A recent New Mexico case highlights that there are still a lot of unknowns regarding how to accommodate an employee’s COVID-19 vaccination exemption request. The Equal Employment Opportunity Commission’s (EEOC) 2020 guidance states that while employers can actually mandate COVID-19 vaccinations for employees, you can’t rule with an iron fist or fire anyone because they don’t want the vaccine. COVID-19 vaccination exemption.
Note: The EEOC provided updated guidance for fully vaccinated individuals on May 13, 2021. The Agency is considering any impact of these developments on their previously provided guidance.
Employees who have valid reasons for vaccination exemption must be given reasonable accommodation. Unfortunately, what qualifies as an undue burden regarding these accommodations to employee vaccine resistance isn’t cut and dried. As cases move through the courts and become more defined, you’ll begin to see where you have leverage. Right now, your practice is pioneering this new territory. So, tread carefully, because a ‘failure to accommodate’ claim will be very expensive and difficult to defend.
COVID-19 Vaccination Exemption Protections Under ADA and Title VII
While a handful of states have introduced laws that prohibit employers from discriminating against or taking adverse action on employees who refuse a COVID-19 vaccination, none to date have been passed. However, you do need to be very mindful of employee protections under two primary federal laws, if you have 15 or more employees:
- The Americans with Disabilities Act (ADA) prohibits you from discriminating against your employees because of a disability.
- Title VII of the Civil Rights Act prohibits you from hiring, firing, or discriminating against employees based on sex, race, color, national origin or religion.
EEOC’s guidance states employers can mandate vaccinations only when the unvaccinated employee poses a direct threat in the workplace that can’t be eliminated or reduced by a reasonable accommodation.
Reasonable Accommodation Without Undue Burden
While you are required to provide a reasonable accommodation for your employee, there is protection for you, too. Accommodation can’t create an undue burden for you. An undue burden on your practice is going to look slightly different depending on who is judging the situation.
The ADA requires you to grant an accommodation unless it creates a significant difficulty or expense. Title VII requires you to grant an accommodation unless it creates an undue hardship. There isn’t a one-size-fits-all approach to defining these and identifying the cost or burden each will place on your practice, so you must look at each individual situation and evaluate what you can reasonably accommodate.
To determine whether an individual poses a direct threat, the EEOC recommends you analyze the:
- Duration of the risk
- Nature and severity of the potential harm
- Likelihood that potential harm will occur
- Imminence of the potential harm
Making Exceptions
There are a lot of reasons an employee might give for not wanting to take a COVID-19 vaccine, so you must handle each one individually and carefully. The goal is to determine whether it’s a justifiable reason that requires you to accommodate the request or if doing so would create an undue burden on your practice. COVID-19 vaccination exemption.
Let’s look at the top 3 reasons that someone at your practice might request a COVID-19 vaccine exemption:
1. Medical exemption request: An employee requests a medical exemption from the COVID-19 vaccine due to an allergy to one or more of the vaccine ingredients.
Solution: It’s okay to request documentation of the employee’s allergies but be sure to keep this information secure. Examine the employee’s job responsibilities and see if you can come up with a reasonable accommodation. Options may include working from home, working in a separate office, or changing work hours. These accommodations might also require the employee to shift job duties.
2. Religious exemption request: An employee requests a religious exemption from the COVID-19 vaccine due to their religion that prohibits vaccinations. There’s a catch. You’ve never heard this employee verbalize religious beliefs, but you have heard them complain that the vaccine approval was rushed through the FDA.
Solution: Tread carefully when questioning religious beliefs! EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, you should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If you doubt sincerity, it is okay to ask for additional information such as a link to a website that backs up the employee’s claim or a statement from a leader of that faith in your community. Don’t demand excessive documentation, though, or you could be accused of denying a reasonable accommodation, retaliation, or harassment.
As for accommodations, if your employee has direct patient interaction, consider equipping them with extra PPE, limiting contact with high-risk patients, or shifting job duties to something that doesn’t require patient interaction.COVID-19 vaccination exemption.
3. Refusal for political reasons: An employee has been very vocal with political opinions, stating the entire pandemic is a hoax and that the vaccine is fraudulent. The employee has asked for accommodations because they are against being forced to take a vaccine to keep a job.
Solution: Because political beliefs are not protected under the ADA or Title VII, the employee is required to abide by your practice policy to receive the vaccine. You are not required to pursue a reasonable accommodation for a political objection. If you choose to accommodate them with a different position or job location, be very mindful that you must provide the same options for others who are opposed to the vaccine or you risk a discrimination lawsuit.COVID-19 vaccination exemption.
Tips for Accommodating Employees
Accommodating employees for COVID-19 vaccine exemptions is still a very new area of litigation without a one-size-fits-all approach. Right now, you should be very open to listening to your employees’ requests for reasonable accommodations and weighing options if these will create an undue burden on your practice. While you do this, keep these tips in mind:
- Be consistent. Ensure equal treatment for all employees. If you accommodate one individual’s allergy as a medical exemption and not another, the individual who was not accommodated will recognize they were in that same situation as the person you accommodated. The same goes for an individual who just doesn’t want a vaccine because they don’t believe there was enough time to test it. Failure to accommodate one employee when you do another is discrimination. You can’t pick and choose who should be vaccinated based on age, religious belief, or any other factor.
- Keep good documentation. Work with your HR department or your legal counsel to make sure that how you handle these accommodation requests are coordinated and well documented, and that similarly situated individuals are generally treated similarly. Conduct thorough, individualized assessments, and document each of your accommodation requests.
- Track your mandate. If you mandate that your employees receive the COVID-19 vaccine, put a tracking system in place so you know who has received it. Not tracking vaccine progress will lead to vaccinated employees wondering why they had to get vaccinated when nothing happened to those who didn’t. You don’t need a lot of details from the employee, just some receipt indicating they received the vaccination.
- Have a vaccine policy. Create a vaccine policy that is individualized to your practice. Make sure your policy is clearly written and easily referenced. This is also a good place to indicate the nature of different job functions, including what types of accommodations you might—or might not—be able to provide, seeing how you could potentially be bombarded with a lot of accommodation requests.
NOTE: As the vaccine continues to roll out, many patients want to know the vaccination status of your staff. A vaccine incentive program might help you sway some employees toward getting inoculated – if you implement it correctly. Otherwise, it can result in expensive employee discrimination lawsuits or regulatory penalties.
Labor and employment attorney and discrimination law expert, Allison Anderson, JD, can help. Her 60-minute online training walks you through the legal risks and practical solutions of how to utilize vaccine incentives at your practice. This training uses real workplace scenarios to help you implement a vaccination incentive program that meets your obligations to your employees and federal and state laws while helping your staff and patients feel safe. Learn more about this training.
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