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How to address employee exemption requests

In a September 9, 2021 speech, President Biden announced that private employers with 100 or more employees will need to ensure that employees are either vaccinated or tested for COVID-19 weekly before coming to work. Details will be spelled out in a forthcoming emergency temporary standard (ETS) from the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA).

Whether the ETS applies to your organization or not, you may still be considering a vaccine mandate. If you do require workers to be vaccinated however, you may receive some employee requests for an exemption. Here’s how to handle those requests.

How do we handle requests for medical accommodations

If an employee requests a change in the workplace, including an exception to the vaccine under the ETS, an employer needs to respond in part by engaging in an interactive process with the employee, with a focus on identifying an effective reasonable accommodation.

If the employee’s condition is not obvious, as part of that process, the employer may request reasonable documentation regarding the employee’s limitations. From there, the employer should look at those limitations in relation to the job’s essential functions, identify barriers between the two, and work to break them down or eliminate them.

Employers are to provide an accommodation that does not pose an undue hardship. Determining this entails an individualized assessment based on the employer’s particular situation and resources.

Employers may, however, exclude employees with disabilities from the workplace for health or safety reasons if those employees pose a "direct threat." The COVID-19 virus has been deemed a direct threat based on CDC guidance. Therefore, employees with COVID-19 or symptoms of it in the workplace could be considered a direct threat.

This does not, however, mean that employers may forego their obligation to consider and provide reasonable accommodation to reduce or eliminate the threat. Allowing employees to work from home, or allowing frequent testing, could be effective accommodations.

What about religious exemptions?

As with medical exemptions, requests for religious exemptions should always be considered. While no major organized religion in the United States formally objects to COVID-19 vaccines, the religion need not be a generally accepted faith. It needs only be a sincerely held religious belief. Simply lacking belief in vaccines, however, is not enough.

As with ADA/medical accommodations, employers need not provide a religious accommodation that poses an undue hardship. This, however, is different from the ADA undue hardship. A religious accommodation may cause undue hardship if it is more than a minimal burden on the operation of the business. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

If employers have a bona fide doubt about the basis for an employee’s request, they may make a limited inquiry into the facts and circumstances. This would include determining whether the employee’s belief is indeed religious, sincerely held, and requires accommodation.