COMPLIANCE ALERT: COVID-19 Vaccination Accommodation Requests

As the COVID-19 pandemic continues, employers are having to find balances between productivity and worker health. Namely, workplaces are pondering whether COVID-19 vaccination should be a condition of employment.

The White House attempted to mandate vaccinations to make this decision for certain private employers, but that effort has been delayed. When the Occupational Safety and Health Administration (OSHA) announced the details of its COVID-19 vaccination and testing mandate, it was immediately challenged in the courts and effectively halted until further notice.

Although the rules sit in legal limbo, some employers have taken it upon themselves to get their workplaces vaccinated anyway—earning praise from the White House, which has urged all employers to do the same. As such, many employers are currently deciding whether and how to mandate COVID-19 vaccinations among their employees.

And while the OSHA mandate may be on hold, other workplace laws are still in play, including those regarding accommodation requests. Employees must be allowed to request an accommodation for COVID-19 vaccination exemption—just as they are allowed in the case of mandatory flu shots.

This article outlines how employers can handle COVID-19 vaccination accommodation requests.

Additionally, this article contains details that pertain to federal laws only, provided solely for example and informational purposes. State and local laws will vary. This article is not intended as advice of any kind. Employers should contact legal counsel for advice on any of the information discussed herein.

Accommodation Policy Groundwork

There are two primary workplace laws that provide for employee accommodations: the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII). Both of these laws apply to employers with at least 15 workers.

The ADA compels employers to reasonably accommodate qualified employees with a disability unless doing so would cause an “undue hardship” on the organization or pose a direct threat to the safety of the employee or others in the workplace. Similarly, Title VII requires employers to accommodate employees’ sincere religious beliefs, unless it would cause an undue hardship.

Given these employee protections, employers must tread carefully when determining whether to approve or deny an employee’s accommodation request. Workplaces can use an interactive determination process to make an informed decision. But before that can begin, employers must set some policy groundwork, which involves determining legal obligations and drafting written rules.

Determining Employer Obligation

Before anything else, employers should know what their specific legal obligations are. For instance, the ADA and Title VII generally only apply to employers with 15 or more employees. If an employer with at least 15 workers receives a vaccination accommodation request, they should begin the interactive process.

Establishing a Written Policy

Having accommodation policies in writing is a starting point for uniform enforcement. A sufficient written policy will clearly detail how an employee might request an accommodation, the various steps involved in the determination process and similar details.

To supplement policies, employers may consider reviewing job descriptions to ensure they include all workplace expectations and requirements, including COVID-19 vaccination or testing rules.