There is a lot of confusion around vaccine mandates and applicable accommodations. In order to provide more in-depth information for you to consider when planning the best course for your company, we wanted to share some of the resources that we have found on these topics.
President Biden recently announced several initiatives to help the U.S. recover from the ongoing COVID-19 pandemic. One of those initiatives, “Vaccinating the Unvaccinated,” will implement vaccine requirements that will cover 80 million employees. These new rules will extend vaccine mandates to all federal workers and federal contractors and subcontractors. In addition, employees of private employers with 100+ employees will either have to be vaccinated or be tested weekly. These employers will also need to provide paid time off for employees to get vaccinated and to recover from any side effects of the vaccines.
OSHA is expected to issue an Emergency Temporary Standard (ETS) in 30–60 days, with a short time frame before it becomes a requirement. After 6 months, OSHA is expected to replace the ETA with a permanent standard. While there is no guidance yet, you can find the most current information from OSHA here: https://www.osha.gov/coronavirus/faqs.
Accommodations
Conversations about vaccine mandates trigger questions about reasonable accommodations.
The Equal Employment Opportunity Commission (EEOC) has offered many FAQs around COVID-19 in the workplace that can be found at EEOC: COVID-19. Section K covers vaccines, while other sections offer valuable insights for every aspect of COVID-19 in the workplace. Though the EEOC has not specifically said employers can require employees to be vaccinated, it has clarified that there is no law preventing an employer from establishing the requirement. Employers must apply the same requirement to all employees regardless of protected group (i.e., race, gender, religion, age, etc.) and must offer reasonable accommodation due to an employee’s disability (Americans with Disability Act, or ADA) or sincerely held religious belief (Title VII of the Civil Rights Act).
Reasonable accommodation could include allowing the employee to work from home, requiring the employee wear a mask and socially distance from others, modifying the employee’s work shift or schedule to reduce personal interactions, mandating the employee to regularly present a negative COVID-19 test, and/or creating a job reassignment.
While there are many possible accommodations, employers must only offer those that are reasonable, meaning they do not cause an undue hardship on the company. This means that what works for one company or employee may not be possible for another.
Employers must be consistent in their consideration of accommodations for all employees but every employee’s case should be assessed individually using factors such as the reason for the need and the accommodations needed, as well as their job duties and impacts of the accommodations on the company and other coworkers.
Employers should name one person to review and maintain any reasonable accommodation requests to maintain consistency. A good process for considering a reasonable accommodation includes:
- the employee making a request for accommodation to the employer;
- the employer starting a dialogue with the employee to determine what accommodations are needed and what is reasonable;
- the employee providing acceptable documentation of possible accommodations;
- the employer considering each accommodation to determine what is reasonable; and
- the employer offering reasonable accommodation, if any.
The employer should then have the employee sign a written acknowledgement of the details of accommodation, including requirements, timing, an ongoing review process, repercussions if the employee fails to maintain certain standards, and the right to rescind the accommodation if needed or the situation changes. Each arrangement should be reviewed regularly to ensure it is working for the employee and the company and, if not, adjusted accordingly. The whole process must be kept confidential with only the necessary people knowing of the details behind the need for the accommodation.
Medical: Under the ADA, people who have a disability which prevents them from receiving the vaccine should be offered reasonable accommodation. While most people with health issues are encouraged to get vaccinated, there are some medical conditions which may make it contraindicated, such as being allergic to the components in the vaccine or having a neurological condition such as Guillain-Barre Syndrome. Anyone needing reasonable accommodation due to a disability should provide documentation from their personal health care provider, certifying that the employee cannot receive the vaccine due to medical reasons and outlining possible accommodations.
Religious: Under Title VII of the Civil Rights Act, employees cannot be required to get a vaccine if it violates their religious belief, practice or observance, or their sincerely held belief. Employers do not need to accept general statements or form letters but should require documentation from the employee’s personal religious leader explaining the reason the vaccine violates the person’s beliefs.
Many religious leaders have come out in support of COVID-19 vaccines in the name of public health and safety, which you can read in detail through the U.S. Embassy, ABC News or Newsweek. A common cited belief is the usage of aborted fetal cells; however, as noted in each of the articles, as well as via Science.org, the COVID-19 vaccines themselves do not contain fetal cells. These cells were used in research as they have been for numerous other vaccines and medical products, such as ibuprofen, Tylenol and Pepto-Bismol. If an employee uses all of those products without hesitation then you may be able to challenge the request.
Employers have the right to challenge a request that is not supported by documentation from the employee’s personal health care provider or religious leader. Even if they disagree with the documented reason, both the employer and the employee should defer to the parameters given by the provider or leader.
If employees have vaccine hesitancy, you can refer them to some unbiased resources such as the CDC, UCLA and Nebraska Medicine. For earlier information on mandating vaccines, check out this related article from March 2021.
Paige McAllister, SPHR, SHRM-SCP, is vice president of HR compliance for Affinity HR Group, Inc. If you have any questions as you structure or restructure your workplace, contact Paige and her team.