In May of this year, the Equal Employment Opportunity Commission (EEOC) released new guidance for employers related to offering and requiring employees with disabilities to receive a COVID-19 vaccination. The term “disability” encompasses a variety of situations and conditions – many beyond those typically considered by employers. Unknowingly, you may be at a high risk of failing to comply. Vaccination exemption.

Multiple COVID-19 vaccination-related clarifications are included in the recent EEOC update. One area of focus involves individuals with disabilities who refuse to be vaccinated. When this occurs, you are required to offer reasonable accommodations to avoid discrimination against these individuals. The guidelines below target the specific topic of reasonable accommodations only, not the entire EEOC rule.

Reasonable Accommodations Broken Down Vaccination exemption

The EEOC defines reasonable accommodations as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” There are three situations in which you might be required to offer modifications/adjustments for a person with a disability:

1. During the hiring process to make the position accessible.
2. To a qualified employee’s work environment, circumstances or functions that make the position possible.
3. To a qualified employee to offer the same employment benefits and privileges as those available to non-disabled staff in similar situations.

You are not required to proactively offer reasonable accommodations to every job candidate or employee with a disability. However, it’s an entirely different situation if they ask for an accommodation, or notify you of a sincere “religious belief, practice or observance” that prevents vaccination. In these instances, you are required to offer reasonable accommodations, with an exception if it poses an “undue hardship” to your practice.

Identifying exactly what qualifies as an undue hardship isn’t entirely clear. Typically, reasonable accommodations are considered as being unduly burdensome when they are overly difficult for your practice to implement or are simply not financially feasible.

Reasonable Accommodation Without Undue Hardship Vaccination exemption

There isn’t a one-size-fits-all formula to identify an undue hardship. Instead, you must take the time to evaluate each individual circumstance and decide whether a reasonable accommodation will result in excessive difficulty or expense.

Ask yourself these questions to determine whether a reasonable accommodation related to COVID-19 vaccination is unduly burdensome:

• How long will the risk last?
• What is the type and magnitude of the potential harm?
• How likely is it that harm will occur?
• What access exists to the potential harm?
• How many employees are already fully or partially vaccinated?
• What is the extent of the employee’s contact with patients?
• What is the cost to implement the accommodation?
• How does the cost impact your practice’s finances and resources?

The answers to these questions will provide you with clarity as to whether an accommodation poses an undue burden. The decision is by no means easy, but the EEOC advises consideration of all possible options before denying a request. For example, if a reasonable accommodation that enables the employee to perform his or her current job duties onsite isn’t possible, you must determine if working from home is a suitable accommodation for that employee’s role. As a last resort, you must determine if reassignment is possible.

IMPORTANT: You must be able to prove that you made good faith efforts to accommodate a request even when undue burden is present. To fulfill this requirement, keep detailed documentation throughout the process.

Tips for Accommodating Employees Vaccination exemption

If a job applicant or employee with disabilities approaches you asking for reasonable accommodations, be sure to listen closely and take their request seriously. You can ease this process by:

• Training on Reasonable Accommodations: Before you put a vaccination policy in place, ensure your management and HR teams have clear information and a thorough understanding of how to handle reasonable accommodation requests.
• Creating a Vaccination Policy: Enact a policy that works well for your practice. Your policy should be clearly written and easy to understand – especially for employees who speak English as a second language. Be sure to identify the various job functions in your practice and the essential duties of each, so each member of your staff understands their unique responsibilities.
• Maintaining Detailed Documentation: Remember you must have proof of your actions, so clear documentation is a must. Work with HR or legal counsel to confirm you handle accommodation requests fairly and equitably – similar situations should be treated as such. Conduct thorough, individualized assessments for each request you receive, and document each solution you arrive at.
• Tracking Your Mandate: If you mandate that your employees receive the COVID-19 vaccination, put a tracking system in place so you know who has received it. Regularly check the latest OSHA guidance to be sure you’re remaining compliant.

In addition to the EEOC’s recently released COVID-19 vaccination guidelines, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, you should also check your state’s rules to ensure full compliance with unique legal parameters. Several states have suggested laws that prohibit employers from discriminating or taking adverse action against employees who refuse a COVID-19 vaccination. As of the date of this blog, none of the proposed laws have passed.

Labor and employment attorney Arlene S. Steinfield, JD can help you protect your practice while meeting the needs of employees. During her online session, New ADA Rule: Avoid Serious Reasonable Accommodation Penalties, Arlene will walk you through real workplace scenarios of reasonable accommodations. After attending this 60-minute training, you’ll have clarity around what constitutes a reasonable accommodation. Arlene will demystify the EEOC’s recent updates and provide insight into undue hardship.

Sign up for this training today to guarantee your seat. Access is limited to ensure each attendee gets their reasonable accommodations questions answered. Don’t wait, register today!

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