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Federal Market Intelligence for Small Business |
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Column: Return to Work--Employer- Mandated COVID Vaccination Policiesand Accommodating Employee Disabilities and Religious BeliefsBy Matthew E. Kreiser, associate, PilieroMazza PLLCWith over 50% of the adult population in the United States having received at least one dose of a vaccine to combat the novel coronavirus (COVID), many employers are looking forward to a “return to normal” and their employees coming back to the workplace. A common consideration is whether an employer should require COVID vaccination as part of return-to-work policies. Employers must be mindful of ensuring that their return-to-work policies, including any vaccination mandates, comply with any federal or state regulations governing vaccinations and / or discrimination in the workplace. Vaccine mandate laws The decision of whether to implement a mandatory COVID vaccination policy is multi-faceted, and employers must be conscious of, and take into consideration, existing laws that govern employees and the workplace. In March 2020, the Equal Employment Opportunity Commission determined that COVID posed a “direct threat” to the health and safety of the nation’s employees, paving the way for its December 2020 guidance advising employers that they may adopt mandatory COVID vaccination policies. However, the commission warned employers that they must permit exemptions for their employees with disabilities, under the Americans with Disabilities Act (ADA), and for employees with sincerely-held religious beliefs, under Title VII of the Civil Rights Act of 1964 (Title VII), unless doing so would cause an undue burden on business operations. Disability exemptions Under the ADA, if an employee requests an exemption to required vaccination on the basis of a qualifying disability, the employer must determine whether the employee’s request can be reasonably accommodated, absent an undue hardship (i.e., significant difficulty or expense). For example, an employee may have a documented history of allergic reactions to vaccine ingredients and, after consultation with medical providers, may seek an exemption from COVID vaccination. Additionally, some employees may present mental health issues related to severe anxiety about receiving a COVID vaccine. Employer’s response When confronted with a request for an exemption from a mandatory COVID vaccination policy, an employer must engage in an interactive process with the employee to determine if the employee, with or without an accommodation, could perform the essential functions of the position without posing an undue hardship to the employer. However, employees may ask for both a vaccine exemption and an accommodation to the work arrangement, most commonly requesting telework. An employer need not necessarily grant an employee their requested accommodation (e.g., telework), but must provide an accommodation that is reasonable under the circumstances. Religious exemptions Title VII requires employers to reasonably accommodate an employee’s sincerely-held religious beliefs to the extent that the accommodations would not pose an undue hardship on the employer. A prevalent challenge is determining whether religious beliefs are “sincerely held” and must be accommodated when an employer is presented with a nontheistic or other belief that does not align with common notions of religious beliefs. For example, should an employee claim that receiving a vaccine will violate their belief system concerning self-determinism and what affects their body, such beliefs cannot be instantly dismissed. Many courts have determined that nontheistic beliefs can be religious. The EEOC’s recent guidance echoes this line, stating that sincerely-held religious beliefs are “moral or ethical beliefs as to what is right and wrong” that are held by the employee with the same sincerity as that of traditional religions. The employee’s beliefs need not be based on tenets of a traditional religion, but must occupy a place in their life parallel to that occupied by God in many religions. Employers must keep in mind that jurisdictions can vary in their interpretation of this question. Once a determination is made regarding the sincerity of the employee’s belief, an employer moves through the same interactive process as described under the ADA to determine if granting the exemption would pose an undue hardship on the employer. Additional concerns Navigating the ADA’s and Title VII’s reasonable accommodation process can be challenging and involves multiple considerations. It is critical that employers assess their policies and practices to ensure that their employees understand how to initiate the accommodation process (whether for an exemption to a mandatory COVID vaccination requirement or otherwise) and that the employer is consistent in their review of and response to accommodation requests. Additionally, should an employer implement a mandatory COVID vaccination policy, it is critical that any health information obtained from employees is handled with care in accordance with the ADA’s requirements. While restoring employee confidence in returning to work is important, employers must balance the potential impacts of non-vaccinated employees to their business with their obligations under the ADA and Title VII to accommodate qualifying disabilities and sincerely held religious beliefs. To address concerns of whether an employer’s vaccination policies comply with applicable regulations, businesses should seek legal advice to review their policies and ensure compliance with the ADA and Title VII, minimizing the potential for costly litigation. Matt Kreiser is an associate with PilieroMazza PLLC. He may be reached at mkreiser@pilieromazza.com. This blog entry has been reprinted with permission from PilieroMazza PLLC.
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