Return to Work: Employer-Mandated COVID Vaccination Policies and Accommodating Employee Disabilities and Religious Beliefs

With 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 businesses and employers are looking forward to a “return to normal” and their employees coming back to the workplace. One common consideration is whether an employer should implement mandatory COVID vaccination requirements as part of their 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.

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 (EEOC) 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 EEOC warned employers that they must permit exemptions to their vaccination requirements as an accommodation for their employees with disabilities, under the Americans with Disabilities Act (ADA), or 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.

Exemptions Based on a Qualifying Disability Under the ADA

Under the ADA, if an employee requests an exemption to receiving a COVID vaccine on the basis of a qualifying disability, the employer is required to 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 some of the ingredients in the vaccines and, after consultation with their medical providers, is not a candidate to receive one of the available COVID vaccines. Additionally, some employees may present mental health issues related to severe anxiety about receiving a COVID vaccine. When confronted with a request for an exemption from a mandatory COVID vaccination policy, an employer is required to 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. In this context, the employer must determine whether the employee is able to perform the essential job duties of their position without being vaccinated. However, employers must be aware that an employee’s request for an exemption to the vaccine requirement may also be accompanied by an additional request for an accommodation to the work arrangement, most commonly 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.

Exemptions Based on a Sincerely Held Religious Belief Under Title VII

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. One of the more prevalent challenges 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 of court decisions, 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. Stated differently, the employee’s beliefs need not be based in tenants 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 above to determine if accommodating the employee’s exemption request would pose an undue hardship on the employer.

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 mandatory COVID vaccination policies comply with applicable regulations, government contractors, healthcare providers, and commercial businesses should seek legal advice to review their policies and ensure compliance with the ADA and Title VII, minimizing the potential for costly litigation.

If you have questions about implementing COVID vaccination policies at your company or ADA and Title VII compliance, please contact Matt Kreiser, the author of this blog, or a member of PilieroMazza’s Litigation & Dispute Resolution or Labor & Employment practice groups.

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