State and local laws concerning COVID-19 vaccine mandates take every imaginable form from prohibition to requirement, and many of these laws can be nuanced and confusing.
Some states, counties, and cities require all healthcare workers, including dental employees, to get vaccinated or subject themselves to weekly COVID testing unless they have a medical or religious reason not to get the vaccine, while other localities prevent employers from enforcing a vaccine mandate in the workplace altogether.
Plus, updates to these laws are rolling out at a head-spinning pace in some places, making it difficult to know for sure if the law in a given area applies the same way today as it did the last time you looked into it. We’ve said it once and we’ll say it again – it’s a tough time to be an employer!
We understand that business owners may have differing preferences regarding interest in implementing a vaccine mandate or not. For those that do wish to implement a vaccination requirement, or in the event that you are actually required by local laws to implement a vaccine mandate, work with an HR professional or employment law attorney to verify the regulations in your area and to ensure that you are implementing any mandates in a way that is compliant with all applicable laws. You’ll also need to be prepared to deal with requests for federally or locally protected vaccine exemptions when they arise.
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What would be considered a legal reason for claiming exemption from a vaccine mandate?
The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII) protect employees from being forced to get a vaccine if they have a legitimate medical condition or sincerely held religious belief that contraindicates vaccination. These laws both apply to businesses with 15 or more employees, though many states and localities have similar laws in place that apply to smaller businesses, as well.
If your business is mandating vaccines, either by choice or due to a state or local order, and you have more than 15 employees and/or a state or local law protects similar exemptions for smaller employers where your business is located, you will be required to engage in an interactive process with employees who fall into either protected category in order to identify potential accommodations you can make for them despite their inability to be vaccinated.
Can I ask my employee to prove they are exempt from vaccination requirements?
Yes, but you’ll need to be careful how you go about doing so.
When it comes to obtaining proof of a legitimate medical reason not to get a vaccine, the matter is as simple as getting a signed doctor’s note stating that the employee qualifies for this exemption. The employee’s physician should not have to disclose what the condition is that prevents the employee from being vaccinated – just that they have a medical justification for not getting a vaccine.
When it comes to religious exemptions, however, that phrase “sincerely held” makes things a little more tricky.
What if I suspect that an employee is being dishonest about their stated religious beliefs?
According to the Equal Employment Opportunity Commission (EEOC), which is the organization responsible for enforcing Title VII, employers should generally assume that an employee’s request for religious exemption is genuine, even in cases where the belief is “non-traditional” or when you are unfamiliar with the stated belief.
We are seeing some requests being submitted to employers that are simply not religious. Sometimes an employee will call something a religious exemption when it is really a personal or political belief. In very rare instances, even personal beliefs about the vaccine may be protected by state laws. Still, in most cases, it is okay to call personal requests what they are and deny the request. Of course, you will still want to get the employee’s request in writing and explain the reasoning for your denying that request in writing. Should such a situation arise at your business, we recommend that you reach out to an HR professional for help with this process to make sure your business is handling this in a safe and legally compliant manner.
When an employee’s request for an exemption is, in fact, due to legally protected religious reasons, employers are allowed to make a “limited factual inquiry” seeking additional supporting information related to the religious nature or sincerity of a particular belief when there is an “objective basis” for calling the belief into question. But employers should note that the EEOC states clearly that the sincerity of a religious belief is “usually not in dispute” and is “generally presumed or easily established.”
You will also want to note the inclusion of the word “limited” with respect to your ability to dig deeper into an employee’s sincerely held religious beliefs. You can, for example, ask the employee how vaccination goes against their religious beliefs. Asking the employee some simple, straightforward questions about their religious beliefs on the exemption can be a deterrent to frivolous requests.
However, even factors that might cause you to think that an employee does not adhere to a certain religion sincerely – such as behavior that appears to go against that religion – may not prove that a belief is not “sincerely held.” The EEOC recognizes that an employee’s religious beliefs and practices “may change over time,” and that “an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.”
What this means is that there is not much you can do as an employer to call an employee’s stated religious beliefs into question beyond asking a few general questions or asking if they are willing to provide a note from a spiritual leader supporting their exemption. In general, it’s safest to assume that the EEOC will err in favor of the employee in most circumstances concerning their stated religious beliefs and to take the employee’s religious objections at face value, unless you can prove with certainty that the employee has non-religious reasons for requesting exemption.
What constitutes a “reasonable accommodation” for an employee who cannot be vaccinated?
The bar for an accommodation to be considered “reasonable” is that it cannot cause “undue hardship” to your business.
“Undue hardship” has been defined by the Supreme Court as anything more than a “de minimis,” or minimal, cost to your business. The trouble is that the term “minimal” is not well defined and the burden of proof for what that cost would be falls squarely on your shoulders as an employer.
With PPE readily available and weekly testing options in place for the unvaccinated in many localities, coupled with the fact that most healthcare facilities have operated safely for months without the option to have their employees vaccinated, it will be extremely difficult for you to prove that providing an accommodation for an unvaccinated employee will cause your business to experience an “undue hardship.”
Reasonable accommodations for an employee who refuses a vaccine for religious or medical reasons can include remote work (when possible), regular COVID testing, or a temporary reassignment of job duties. In most cases, it will be in your best interest as an employer to explore all of the options available to you and your employee before claiming “undue hardship” and denying all accommodations or attempting to terminate them for refusing to be vaccinated – a prospect that will be especially risky, given the circumstances.
Conclusion
When vaccination is mandated for your employees, whether by choice or as a matter of state or local order, it’s important to work with an HR expert or employment law attorney to ensure that you are following the letter of the law as it applies to your business. You will also need to have a legally compliant written policy in place regarding the mandate and be ready to address employees who claim exemption from such mandates due to medical or religious reasons. CEDR Members can reach out to the Solution Center for help with this process and to obtain a written policy and supplemental vaccine exemption form you can provide to your employees if your business is mandating vaccines.
It is possible to request more information to prove that a medical or religious exemption is valid, such as by requesting a letter from a doctor or religious leader, but you should be aware that your options for calling an employee’s religious beliefs into question can be severely limited. Similarly, when an employee requests an accommodation, making the case that doing so would cause your business “undue hardship” can be an uphill battle, and terminating employees following such a request can be extremely risky.
If you are a CEDR Member and are required by state or local law to mandate vaccination for your employees or you would like to discuss your options related to mandating vaccines in your workplace, send us an HR request from your Members Area.
If you are not a CEDR Member and have questions about vaccine mandates in your area, join our professional Facebook group, HR Base Camp, or talk to someone about how CEDR can help you build protections for your business.
