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HR Tip: Handling exemption requests for mandatory vaccination policies


According to the guidance issued for the vaccine mandate for federal contractors, if an employee asserts an objection based on a disability, medical condition, or sincerely held religious belief, practice, or observance, it is the covered contractor's responsibility to engage in the interactive process to determine what, if any, accommodation can be offered. If the agency is a joint employer, then the interactive process and evaluation of reasonable accommodations should be evaluated with the agency. It is anticipated that similar provisions will be included in the ETS for private employers.

In guidance issued in May, the EEOC noted examples of a "reasonable accommodation" for employees who cannot comply with a vaccine mandate because of a disability, religious belief, practice or observance, or pregnancy include requiring the unvaccinated employee to:

Notably, the EEOC filed the first pandemic-related remote work bias lawsuit, EEOC v. ISS Facility Services, Inc., early in September. An employers' previous remote working arrangements during the COVID-19 pandemic is going to be used as evidence that employees should be permitted to continue to accomplish the essential functions of their employment in a remote capacity.

The exemption based on disability and medical conditions is relatively straightforward. An employer is entitled to require a reasonable amount of verification to confirm that the employee does have a bona fide reason not to be vaccinated, engage in the interactive process addressing whether unvaccinated employee's presence in the workplace poses a direct threat, and if so, what reasonable accommodations would eliminate or reduce this risk.

Religious exemption requests, however, are more troublesome for employers. Religious objections are protected even when they are not supported by a formal religious group, and the EEOC has indicated employers should seek further verification only if there is an "objective basis" to doubt the employee's objection is religion-based. Legal experts suggest there will be a surge in religious-based requests, especially in states with vaccine-resistant populations. There has been a proliferation of websites providing free form letters to employees who don't want to be vaccinated and need a religious excuse.

Some suggest that if the interactive process clearly shows that the employee's objection is entirely political, based on fears about the safety of the vaccination, or considered an infringement of personal rights, deny the request. However, others feel that religious exemptions are a slippery slope and it's best to focus energy on the interactive process addressing whether an unvaccinated employee's presence in the workplace poses a direct threat and what reasonable accommodations would eliminate or reduce this risk.

All requests must be considered individually and treated confidentially. Written documentation of the reasons for the decision should include the employee's request, any supporting information submitted by the employee, the reason you determined that the request met or did not meet the medical or religious exemption, the reason you determined that the employee's belief was or was not "sincere," and any other relevant information. Ensure that all requests are handled consistently.

The first step in determining whether an employee can perform their job duties with an accommodation such as remote work is to know precisely what the employee's essential job duties are and how often they perform those tasks. It's time to review job descriptions to be sure they truly reflect the essential functions of the job.