HR Tip: Employers grapple with flood of exemption requests

The Equal Employment Opportunity Commission (EEOC) recently updated "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws" (Section K Vaccinations - Overview, ADA, Title VII, and GINA), and added six religious accommodation-based questions and answers in a new Section L (Vaccinations - Title VII and Religious Objections to COVID-19 Vaccine Mandates).

While the guidance mostly reinforces previous information, it is indicative of the challenges covered businesses face in complying with Title VII requirements to accommodate employees who object to vaccination based on a sincerely held religious belief, practice, or observance, unless the accommodation would cause undue hardship for the business. The EEOC also took the unusual step of making its own internal religious accommodation request form available to the public.

Many assessments for religious or medical accommodations hinge on whether they would create undue hardship for the employer. The EEOC says that businesses may consider not only costs but also "the risk of the spread of COVID-19 to other employees or the public." However, it also notes that a "mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, [though] the employer may take into account the cumulative cost or burden of granting accommodations to other employees." The guidance also outlines other considerations including:

• impairment of workplace safety
• diminished efficiency in other jobs
• shifting of potentially hazardous or burdensome work to other employees
• Does the employee seeking the accommodation work outdoors or indoors, in solitary or a group work setting, have close contact with other employees or members of the public?
• What is the level of exposure to the employee seeking the accommodation (i.e., how many employees and non-employees physically enter the workplace, how many employees are fully vaccinated)?

ADA guru Jeff Nowak notes that employers are increasingly finding that unvaccinated employees pose a direct threat to others in the workplace and are placing employees on leave, at times on an indefinite basis. There have been successful challenges to this practice. A US District Judge extended a temporary restraining order against United Airlines barring placing unvaccinated workers with a religious or medical objection to its mandate on unpaid leave. In Tennessee, a federal judge issued a temporary restraining order against Oak Ridge National Laboratory's vaccine mandate finding that unpaid leave presents a "functional loss of employment," and barring them from placing employees on indefinite unpaid leave or firing them after they receive a religious or medical accommodation to the vaccination. The employees claim that they were not offered alternatives to a leave of absence, such as remote work or COVID-19 testing.

Nowak notes the EEOC's admonition doesn't mince words:

"If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace-or take any other action-unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat."

"The message from the EEOC and early court rulings is clear: when faced with a vaccination exemption request, employers should fully engage the employee, identify the direct threat they pose to the workplace, and consider accommodations to keep them working. If these are not workable, then - and only then - is unpaid leave an option."

It is a complex, fact-specific process. Each accommodation request should be on a case-by-case basis and granting (or denying) one request does not necessarily mean that another request would result in the same result.

Helpful resources

The Society for Human Resource Management - 4 Steps for Handling Religious Objections to Workplace Vaccine Mandates

East Coast Risk Management - Responding to Religious Objections to a COVID-19 Vaccine Mandate

National Law Review - EEOC Issues Additional Guidance on Religious Objections to COVID-19 Vaccine Mandates

JD Supra - Vaccine Mandates and Religious Exemptions: Why Employers are Confused