Balancing Vaccine Mandates And Reasonable Accommodations

We previously addressed the Constitutionality of vaccine mandates as applied to the COVID-19 vaccine. While the case law thus far is primarily employer-friendly, it is important for employers with vaccine mandates to remember that in some circumstances, the Americans With Disabilities Act (the ADA) and Title VII of the Civil Rights Act (Title VII) require employers to provide reasonable accommodations for employees where they will not get vaccinated because of a disability or a sincerely held religious belief, practice, or observance. See EEOC Guidance.

REASONABLE ACCOMMODATION FOR DISABILITY

Generally speaking, Title I of the ADA prohibits employers with 15 or more employees from discriminating against applicants and employees based on disability, which can include pregnancy. In some situations, Title I requires such employers to provide reasonable accommodations for applicants and employees based on that individual’s disability and that will allow that individual to perform the essential functions of their job. See Americans With Disabilities Act of 1990, As Amended. Because of this, if an employee requests an exemption from a vaccine mandate for medical reasons, employers should engage in the ADA’s “interactive process” with the employee—a flexible, interactive process to identify workplace accommodations that do not impose an undue hardship on the employer. In addition, this process can include obtaining medical documentation supporting the fact that the employee is, in fact, disabled. 

REASONABLE ACCOMMODATION FOR RELIGIOUS REASONS

Among other things, Title VII prohibits employment discrimination based on religion. Similar to the ADA, this sometimes requires employers to provide reasonable accommodations for applicants and employees based on that individual’s religion. See Title VII of the Civil Rights Act of 1965, as amended. Broadly speaking, once an employee requests a religious accommodation, it is wise for the employer to assume that the request is based on a sincerely held belief. However, if an employer has an “objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.” EEOC Guidance at L.2.

EXAMPLES OF POTENTIAL ACCOMMODATIONS

Accommodations can take many forms. The U.S. Equal Employment Opportunity Commission (the EEOC) provides the following possible reasonable accommodations when an employee is entitled to an accommodation (and where such accommodation does not pose an undue hardship or direct threat): “an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.” EEOC Guidance at K.2.

ACCOMMODATIONS CANNOT POSE UNDUE HARDSHIP OR CREATE A DIRECT THREAT

Regardless of which reason an employee requests an exemption from a vaccine mandate, employers are not required to provide any accommodation where it would “pose an undue hardship on the operation of the employer’s business” or the employee would post a “direct threat” to the health and safety of other individuals in the workplace. See EEOC Guidance.  Interestingly, with regard to religious accommodations, the U.S. Supreme Court has ruled that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

As you can see, it is difficult to discern when an employee may be entitled to an accommodation based on disability or religion.  However, it is most important that an employer knows when either of the above provisions might apply, which will give them the opportunity to seek advice in navigating these difficult issues.

INSIGHTS FOR GF CLIENTS

Though these cases have been primarily employer-friendly, it is important to remember the following:

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.