By: Debra Fowler
Many employers are implementing mandatory vaccination policies due to state and/or federal government requirements. Employers do have to allow for medical exception/exemption requests and religious exemptions under Title VII requirements.
Good news! Employers do not make the decision on whether or not employees can or cannot have the vaccine, instead, this is done by the employee’s physician. The process starts with the employee telling their employer they need a medical exception or an accommodation, which should trigger the ADA interactive process.
At this point, the employee should be provided ADA request paperwork for their physician to complete.
An employee’s medical exception request from the COVID vaccination requirement doesn’t have to be cause for panic.
Simply thank them for letting you know, provide them with the ADA request forms, and tell them to return them within two weeks. Be sure to give the employee a time limit on returning the paperwork, up to two weeks; do not leave this open-ended.
Some employees may ask for an accommodation but do not want to disclose their disability. Once the employee discloses their need for an accommodation, you can step through that door and begin asking questions, i.e. Can you help me understand the nature of your disability?
Once the ADA request is returned, the employer and the employee should have a conversation about the employee’s needs and what accommodations would be possible. For some employers, this may be allowing the employee to wear a face mask in the workplace or to work remotely, depending on the size and industry of the employer. Employers with over 100 employees and/or in the medical field may require weekly testing for employees in addition to a face mask as a potential accommodation.
Some employees may not actually have a medical exception, because they haven’t yet spoken with their physician.
They may find out when they make the request, that their physician is unable to certify the exemption as they do not have a medical reason for not being vaccinated.
Be compassionate, be nice, but be firm on getting documentation from the employee confirming their medical need for an accommodation. This should not fall on HR or the employer, but instead, the employee must ask their physician for this information.
A sincere religious belief does allow employees to claim an exemption from the vaccination mandate under Title VII, which protects employees from discrimination based on religion. If an employer can prove that accommodating the employee would cause undue hardship, the religious exemption may not need to be granted. This would be difficult to prove on the part of the employer though, as there are alternatives to vaccination such as a weekly testing requirement.
Keep in mind that certain religions do not allow specific medical procedures such as a vaccine, and if your employee claims an exemption for their sincerely held belief in one of these religions, be prepared to grant an exemption. Employers and employees must also remember that personal beliefs are not the same as religious beliefs. Some employees may not want to get the vaccination for non-religious and non-health-related reasons, but these reasons are not protected.
For employers that require flu vaccines on an annual basis, this may be a ruler for measuring whether or not a person’s religious belief is sincerely held and may call into question an employee’s religious exemption request.
Employers are recommended to develop a committee to review religious exemption requests and to go by pre-set criteria on how to determine employee sincerely held beliefs. Steps for the religious exemption process should include the determination of whether the objection is based on personal choice or sincerely held religious belief, the interactive process including a request form, decide on the accommodation request.
If an employee is not willing to participate in the process or refuses all accommodation options offered, you may have to consider an unpaid leave of absence and/or separation of employment.
Best practice: Our HR clients should contact their HR Business Partner for guidance. For Payroll clients and anyone else, we recommend contacting an Employment Attorney.