This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.
While employers in healthcare and education have mandated, or considered mandating, vaccination of employees during the COVID-19 pandemic, recently employers in many other industries are considering doing so. Manufacturers are now grappling with how best to evaluate the risks associated with such policies, implementation and administration of a mandatory vaccination policy, and the handling of requests for exemption, which may follow. Under federal and many state laws, employers requiring vaccination must provide employees (and applicants with job offers) with the opportunity to request an exemption from vaccination as a reasonable accommodation, based on a disability (or medical condition) or sincerely held religious belief. Employers are required to engage in an interactive process with employees to understand the request and determine whether to approve or deny it. Therefore, it is critical that employers maintain clear policies and procedures for evaluating such requests and understand their legal obligations in doing so. Of particular note, general vaccine hesitancies and personal philosophies are generally not protected by law and employers are not required to consider such exemption requests unless a state or local law provides otherwise.
First, employers may be required to provide an exemption from vaccination based on a disability or medical condition, unless this would cause an undue hardship or the unvaccinated employee would pose a “direct threat” to the health or safety of the employee or others in the workplace (i.e., a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation). In evaluating an employee’s request for a medical exemption, employers should understand when it is appropriate to ask for reasonable documentation about an employee’s disability (such as documentation from a healthcare provider) and be prepared to engage in an individualized assessment of the request. Requests may be denied if the information provided is insufficient or does not support the request for medical exemption, or alternatively if the request would create an undue hardship on the employer or pose a direct threat to the health and safety of others in the workplace.
Second, employers may be required to provide exemptions for employees who are unable to be vaccinated due to a “sincerely held” religious belief, observance, or practice, provided doing so does not pose an undue hardship on the employer’s business. According to guidance from the Equal Employment Opportunity Commission (EEOC), the definition of “religion” is fairly broad and it is not limited to mainstream or organized religions; on the contrary, it may include religions that are new, uncommon, not part of a formal church or sect, or held by a small number of people. Generally, mere personal preferences or social, political, or economic philosophies are not considered to be religious beliefs, observances, or practices. Thus, the EEOC advises that employers should generally presume that an employee’s request for religious accommodation is based on a sincerely held religious belief, unless there is some objective basis for questioning the religious nature or sincerity of the belief (e.g., the employee has behaved in a manner “markedly inconsistent” with such belief). That being said, employers should review requests carefully to understand what is being requested, the basis for the request, and how the belief may conflict with COVID-19 vaccination; it may be appropriate to request follow-up information or supporting documentation if this is unclear. Employers should also understand how to properly evaluate whether providing a religious exemption to an unvaccinated employee would impose an undue hardship on the employer, which under federal law is a lower threshold than the “undue hardship” analysis related to disability or medical exemptions.
In sum, it is important for employers that are considering mandating COVID-19 vaccination of employees to implement a policy that sets forth the process for requesting and processing medical and religious exemptions. Employers may need to designate personnel to review, evaluate, and approve or deny the requests, depending on the expected number of requests, which may include members of human resources, legal, compliance, or functional areas. Such personnel may need training to ensure they understand: how to evaluate requests; what information can be requested initially and to supplement an insufficient request; that such information is confidential medical information (both vaccination status and medical conditions) and confidential personnel information and must be treated accordingly and with discretion; and how to determine whether to approve or deny such requests. Once such a determination is made either approving or denying the request, employers should understand the next steps. For requests that are approved, employers may require employees to comply with additional safety precautions. For requests that are denied, employers that have implemented a mandatory COVID-19 vaccination requirement by a specific date will need to prepare for employment terminations on that date. Employers may also wish to consider consulting competent legal counsel to understand the legal nuances associated with evaluating exemption requests.