President Biden’s sweeping Covid-19 mandate requirement for companies of 100 or more employees, announced last Thursday, brings managing the mandate and the reasonable accommodations requests from employees to the top of HR’s to-do list.
The mandate requires workers either to be vaccinated or to be tested for the virus weekly. This requirement will affect about 80 million private-sector American workers and the roughly 17 million workers at health facilities that receive federal Medicare or Medicaid. Are you ready to manage exception requests? Are you ready to take the necessary measures to curtail this endemic?
The surging Delta variant, stubborn resistance to vaccinations, a Covid-19 death rate for mostly unvaccinated Americans under age 55 at nearly 1,800 per week, and fear that the Delta variant and potential other variants are upending the US’s strong economic recovery have frustrated the President’s previous persuasion-based campaign. The Occupational Health and Safety Administration (OSHA) is to enact the mandate, which will reportedly carry a $14,000 fine per violation. The rule will require that large companies provide paid time off for vaccination and lay the groundwork for booster programs. (See the chart from The Wall Street Journal at right.)
While many Republican politicians criticized the President’s mandate, many businesses and health care organizations praised it. They include the American Medical Association, the National Association of Manufacturers, and the Business Roundtable. Although the new requirement will be challenged in the courts by some Republican governors and perhaps some businesses, many legal experts believe the President has the power to require Covid-19 vaccine mandates. Another legal consideration is that vaccinated employees or labor unions may also sue employers who do not comply with this OSHA health and safety standard.
There are two qualifying reasonable accommodations employees may request to avoid the vaccine. They are medical and disability accommodations, provided for under the American with Disabilities Act (ADA) which are relatively straight forward. The second one is religious accommodations under Title VII of the Civil Rights Act, which can be messy. This summer, businesses and universities have been supported by the courts in requiring vaccinations and the wearing of masks for workers coming into the office or for students coming into class.
Let’s start with medical and disability accommodations, which are essentially the same.
The ADA requires employers to provide reasonable accommodation to qualified applicants and employees with a disability (such as hearing impairment or being paraplegic, among many) unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. The Delta variant certainly poses a direct threat to the safety of employees and others in the workplace. A reasonable accommodation here is a medical exemption.
Some individuals may have medical reasons which prevent them from getting a vaccine, according to Prinz Law firm. Medical exemptions may include allergies to vaccine components, a history of Guillain-Barré syndrome, or other health ailments that make the vaccine risky for the individual.
Employees don’t need to use any specific legal language to request a reasonable accommodation. However, managers should be alerted to pass on these requests to HR and not handle the requests themselves. Untrained managers who handle these complex issues themselves may expose their companies to costly lawsuits and fines. Employees who ask for an exemption for personal reasons or for political reasons are not covered by the ADA or will be considered valid under the President’s mandate. Again, the courts this summer of struck down exemptions based on political or personal requests.
When HR receives a request directly from an employee or through the employee’s manager, HR needs to begin what is called under the law, the interactive process. It involves a good-faith effort by the employer and the employee to discuss the employee’s specific circumstances and determine if any accommodation is needed. An excellent first step is to require the employee to put their request and the reason for the request in writing.
For accommodations under ADA for the Covid-19 vaccination, the employer should ask employees for documentation from their medical providers regarding the following:
- nature of any impairment(s)
- the duration of the need for accommodation
- the extent to which the impairment(s) conflict with the employer’s vaccination requirement.
In the event the employer needs to consult with the employee’s health care provider, the employer must obtain a written medical release or permission from the employee. The employee’s health care provider may not disclose information or answer questions about the employee’s disability without his or her consent. The organization’s medical review officer (usually a doctor) may make such requests in large companies. This information is guarded under the Health Insurance and Portability Act (HIPPA), and employers must follow steps to protect the privacy of this information.
Now to religious accommodations.
Employers have an obligation to accommodate an employee’s sincerely held religious belief under Title VII of the Civil Rights Act (Title VII), unless the accommodation creates an undue hardship. A sincerely held religious belief can include an employee’s religious-based objection to vaccinations. The process is essentially the same as described above, including the interactive process, but is not as cut and dried. The first thing to look for is if the employee’s religion has a publicly held theology or statement supporting vaccinations. What is tricky is when an employee’s religious beliefs may not align with the religion’s public statements. These believes are still to be given consideration under the law.
The Equal Employment Opportunity Commission has specified that religious objections do not have to be recognized by an organized religion and can be “beliefs that are new, uncommon or seem illogical, or unreasonable to others.”
I have managed religious-based objections to work policies for years. One example is with a member of the Seven Day Adventist faith which prohibited women from wearing pants. The company’s safety requirement in manufacturing was to wear pants and not dresses to prevent long flowing dresses from getting caught in machinery in one area of manufacturing. We were able to work out an accommodation by discussing how modifications to her dress would fit the safety policy. In this case, the faith’s public position was known, and it aligned with the belief of the employee who was committed to working safely and finding a satisfactory solution. However, the risks of the Covid-19 endemic to workers and public health are much more complex than this example.
The excellent news for Covid-19 vaccinations is that the major religions in the US have come out in favor of vaccination, making it difficult for their church members to claim a religious exemption. This includes the Roman Catholic faith. Even the Christian Science Church, whose adherents rely largely on prayer rather than medicine, does not impose an official policy. It counsels “respect for public health authorities and conscientious obedience to the laws of the land, including those requiring vaccination.”
In fact, according to Vanderbilt University Medical Center research, the vast majority of Christian denominations have no theological opposition to vaccines, including Eastern Orthodox, Amish, Anglican, Baptist, The Church of Jesus Christ of Latter-Day Saints, Jehovah’s Witnesses, Mennonites, Quakers, and Pentecostal Christians.
However, members of these faiths may raise exemptions claiming religious grounds. Roman Catholic employees, for example, may say, despite the Pope encouraging vaccines, that they won’t get vaccinated due to the different opinion by a bishop or priest or claim their own seriously held religious belief.
Employers will have to decide how high a legal bar to set and how aggressively to enforce the mandate against religious based requests — and if the employer should take on individuals who hold a position that is not in line with the public position of their church or any organized religion.
In evangelical Baptist churches, it is shaping up to be difficult. The New York Times reports examples of employees coming up with religious exemptions based on their bible study, and CNN reports that pastors have been willing to write exceptions to the faithful, and one even for a fee.
It is good to consult with your labor law attorney to determine how much legal risk your company wants to take until further legal clarity emerges. Remember, employers may be sued for not allowing reasonable accommodations and be sued for not complying with federal safety guidelines from OSHA. This was the case when Smithfield Foods was sued for failing to provide sufficient personal protective equipment (PPE), forcing them to work shoulder-to-shoulder, and scheduling working time and breaks in a manner that do not allow for proper social distancing. The case was dismissed in court due to technical legal issues and because the meat-packing firm being critical-infrastructure during the height of the 2020 Covid-19 pandemic. But lawsuits from employees and unions are still a threat.
Some employers, like United Airlines, have been aggressive. The New York Times reported that United Airlines told workers that those who receive religious exemptions will be placed on unpaid leave at least until new Covid-19 safety and testing procedures are in place. Others have been more lenient but require testing for those who will have a vaccine exemption. Delta Airlines is requiring vaccinations for its operations staff and raising health care premiums for unvaccinated employees by $200 a month.
Getting the Covid-19 endemic under control so it is no worse than flu season someday is a national public-health goal and critical for continuing the US’s robust economy. Employers who have been on the fence about requiring Covid-19 vaccines, now have the cover of President Biden’s mandate. However, many questions on religious accommodations may end up in court before the end of the year.
Victor Assad is the CEO of Victor Assad Strategic Human Resources Consulting, managing partner of InnovationOne, and Sales Advisor to MeBeBot. He works with companies to transform HR and recruiting, implement remote work, and develop extraordinary leaders, teams, and innovation cultures. He is the author of the highly acclaimed book, Hack Recruiting: the Best of Empirical Research, Method and Process, and Digitization. Subscribe to his weekly blogs at www.VictorHRConsultant.com.