When evaluating the host of issues surrounding COVID-19, most would agree that there are more questions than answers. That is certainly true with regard to the issue of vaccine mandates in the workplace. One thing we do know is that private employers may impose a vaccine mandate on their employees provided that the employer makes an exception to that mandate for the medical needs and religious beliefs of their employees. Even where vaccines in the workplace are mandated by the government (as with President Biden’s recently announced Executive Orders), employees continue to be entitled to the same two exceptions.
So, what standards must an employer apply when an employee claims that she or he needs an accommodation of a medical condition or a religious belief?
I. Medical Accommodation.
Most employers are familiar with the provision of the Americans with Disabilities Act (and its state equivalent, the WFEA) which obligates employers to provide a “reasonable accommodation” to a disabled employee where such accommodation would allow the employee to perform the essential functions of the job without creating an undue hardship on the employer.
In the case of the employee who claims to need an exemption from a mandatory vaccine policy because she or he suffers from a medical condition that makes taking the vaccine inadvisable, the employer should follow its standard disability accommodation process. That is:
- The employer should first evaluate whether the employee’s claimed condition is, in fact, a disability within the meaning of the ADA. If not, the employer has no duty to accommodate.
- The employer should then ask the employee to provide medical evidence to support the claimed need for exemption from the vaccine policy. Such evidence will generally come from the employee’s personal physician or other health care professional. (Copies of articles written by unknown “experts” and posted on Google will not generally suffice.)
- If the employee fails or refuses to provide sufficient medical evidence, then the employer has no obligation to provide an accommodation.
If the employee provides medical evidence but the information is insufficient or if the employer has reason to doubt the veracity of the information, then the employer may send the employee to a health care provider of its own choosing for an independent evaluation. If the provider designated by the employer is independent of the employer, and if the provider concludes that the employee’s condition does not forestall the employee from taking the vaccine, and if the provider’s conclusions are reasonable, then the employer is entitled to rely on those conclusions and deny the employee’s request for accommodation.
- If the employer determines that the employee is entitled to an exemption from the vaccine mandate because of a disability, then the employer must determine if a reasonable accommodation is available that would enable the employee to perform the essential functions of the job.
Employers need not provide any accommodation if that accommodation will create an undue hardship on the employer. Undue hardship is generally defined as creating “a significant difficulty or expense.”
- Certainly, one form of accommodation would be to allow the employee to continue to do his or her job as before. However, because the employer need only provide a “reasonable” accommodation, the question then becomes whether allowing an unvaccinated employee to continue to do the job is, or is not, reasonable.
- If the unvaccinated employee’s presence in the workplace creates a “substantial risk of serious harm,” then such an accommodation may not be reasonable. Questions to consider include, does that employee pose a risk to other, vaccinated employees? If so, is that risk “substantial”? Moreover, could the employer mitigate that risk by taking other measures? Might the employee wear a mask? An N-95 mask? A HazMat suit? Can the employer physically separate its unvaccinated and vaccinated employees? Etc.
- Has the employer engaged in the interactive process? Even if no “reasonable accommodations” are available, the employer must ask the employee for her or his input before taking adverse action against the disabled employee who refuses to take the vaccine.
II. Religious Accommodation.
Employees are entitled to a reasonable accommodation that is necessary because of their “sincerely held religious beliefs.” Because requests for religious accommodations are far less common than requests for accommodations of disabilities, an employee’s request for a religious accommodation is likely to create a more significant challenge for most employers. Fortunately, a substantial body of regulations and case law exists to guide employers through the process of evaluating an employee’s request for a religious accommodation.
The first question is whether the belief is, or is not, a “religious” belief. A “religious” belief is defined very broadly and includes all aspects of religious observance and practice. One federal court recently noted that “religion” (i) generally addresses fundamental and ultimate questions “having to do with deep and imponderable matters,” (ii) is comprehensive (and not limited to one issue); and (iii) typically has certain formal or external signs of practice. “Religion” not only includes traditional organized religions such as Christianity, Judaism and Islam, but it also includes religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. In fact, an employee’s belief or practice can be “religious” even if that belief is inconsistent with the beliefs and teachings of the religious group with whom the employee claims to be affiliated. Indeed, an employee’s profession to have no religious belief is itself a religious belief for purposes of the statute.
The second question is whether the employee’s religious belief is “sincerely held.” The sincerity of a religious belief is judged by examining a host of factors, including (i) whether the employee has acted in a way that is consistent with the claimed belief; (ii) whether the employee is seeking a benefit or exception that is likely to be sought by others for non-religious reasons; (iii) whether the timing of the request is suspicious; and (iv) whether other reasons exist to suspect that the employee is seeking the benefit for secular—not religious—reasons.
Third, if the employee’s belief is “religious” and “sincerely held,” the next question is whether that employer might “reasonably accommodate” the employee’s belief. Although the religious accommodation and disability accommodation standard use the same term—“reasonable”—to describe the employer’s duty, the legal standard between the two statutes is very different. As noted above, for accommodation of a disability, the employer may refuse to provide an accommodation only if that accommodation will create an “undue hardship” on the employer, meaning “significant difficulty or expense.” However, for a religious accommodation, an employer may refuse to provide an accommodation if that accommodation will create any cost or burden on the employer that is “more than de minimus.” Thus, the employer’s right to deny the employee’s requested accommodation is much greater if the request is based on a religious belief than if the request is based on a disability.
Fortunately, the law concerning disability and religious accommodations is well established. That body of law gives employers some meaningful guidance in dealing with these issues in the context of mandatory vaccine policies and mandates. Still, the ultimate answer to the question of whether any specific employee may, or may not, be entitled to a disability-based or religion-related request for an accommodation will depend, to a large degree, on the specific facts of each unique situation.