How Will Your Business Handle Accommodation Requests To Your COVID-19 Vaccine Program?

As the first trucks with the COVID-19 vaccine roll out of the plant, we thought it best to ensure employers were thinking about accommodation requests to their mandatory or recommended COVID-19 vaccine programs.

In this FisherBroyles Client Alert, my law partner Eric Meyer and I provide you with our thoughts on this issue—

As the country prepares for the long-awaited distribution of COVID-19 vaccines, employers need to start thinking now about how they will handle requests for accommodations, based on a disability or religion, in response to employer vaccine programs. 

Let’s start here: if history serves as precedent, employers likely can require that employees become vaccinated against COVID-19. After all, the Equal Employment Opportunity Commission (“EEOC”) tackled the issue of whether employers can mandate employee flu vaccines. While the EEOC takes the position that employer should encourage—rather than require their employee to get a flu shot—the bottom line is that employers can establish vaccine mandates. 

Employers Must Consider Exceptions To Vaccine Mandates 

Acceptable employee objections to COVID-19 vaccinations fall into two main categories: those based on sincerely held religious beliefs and those based on a disability. 

If an employer requires or even highly encourages its employees to get the COVID-19 vaccine once it is widely available, it must remember that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on religion, and, if an employee’s religion prohibits a COVID-19 vaccine, the employer must consider an accommodation for that employee. 

How does an employer determine a reasonable accommodation for a religious objection? 

Under these circumstances, Title VII requires employers to engage in an informal, interactive process with an employee (or applicant) to determine whether the employer can accommodate the employee without undue hardship to the business. The employer certainly has good reason for wanting its employees to be vaccinated, i.e., to promote and maintain a safe and healthy workplace. But the company must discuss how to do so without violating an employee’s religious beliefs if an employee requests a religious accommodation. 

 As the country prepares for the long-awaited distribution of COVID-19 vaccines, employers need to start thinking now about how they will handle requests for accommodations, based on a disability or religion, in response to employer vaccine programs. 

Let’s start here: if history serves as precedent, employers likely can require that employees become vaccinated against COVID-19. After all, the Equal Employment Opportunity Commission (“EEOC”) tackled the issue of whether employers can mandate employee flu vaccines. While the EEOC takes the position that employer should encourage—rather than require their employee to get a flu shot—the bottom line is that employers can establish vaccine mandates. 

Employers Must Consider Exceptions To Vaccine Mandates 

Acceptable employee objections to COVID-19 vaccinations fall into two main categories: those based on sincerely held religious beliefs and those based on a disability. 

If an employer requires or even highly encourages its employees to get the COVID-19 vaccine once it is widely available, it must remember that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on religion, and, if an employee’s religion prohibits a COVID-19 vaccine, the employer must consider an accommodation for that employee. 

How does an employer determine a reasonable accommodation for a religious objection? 

Under these circumstances, Title VII requires employers to engage in an informal, interactive process with an employee (or applicant) to determine whether the employer can accommodate the employee without undue hardship to the business. The employer certainly has good reason for wanting its employees to be vaccinated, i.e., to promote and maintain a safe and healthy workplace. But the company must discuss how to do so without violating an employee’s religious beliefs if an employee requests a religious accommodation. 

assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. 

Types of Accommodations To Vaccine Requirements 

Earlier this year, the EEOC issued COVID-19 guidance explaining that an employee may be entitled to an exemption from a mandatory vaccination. Indeed, granting such an exemption from vaccination may be a “reasonable accommodation.” 

Accommodations to either a disability or religion-based exemption to obtaining a COVID-19 vaccine may include those employees continuing to wear a mask at work even once the majority of employees are vaccinated; eliminating an employee’s marginal duties that require the person to be in the office or in the company of other employees or the general public; continued telecommuting; additional PPE; and revising other workplace policies. 

Not all positions will lend themselves to accommodations, but employers must engage in the interactive process with employees and consider accommodations when an employee refuses a COVID-19 vaccine after an employer mandates or even highly encourages employees to become vaccinated against COVID-19. 

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Amy Epstein Gluck

Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.