COVID-19 Vaccine Policy Exemptions—It’s a Process

The interactive process, that is.

Doctors writing bogus opt-out letters.

An online religious exemption package for sale with “a personalized exemption letter” and “a signed attestation of faith from Pastor David,” which my partner Eric Meyer wrote about a few weeks ago.

Bogus claims that a drug that treats parasitic worms in livestock as a “safe and effective treatment for COVID-19—hey, a telemedicine appointment will hook you right up. (Source)

As employers increasingly mandate that their workforce get vaccinated against COVID-19 since the FDA fully approved the Pfizer/BioNTech vaccine, federal authorities are cracking down on COVID-19-related telemedicine schemes and fake exemptions.

What’s An Employer To Do When An Employee Presents Such Documentation?

Examine the documentation carefully. 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. 

Don’t take my word for it – it’s law!

Yep, 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. 

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.

What’s a “True” Religious Objection?

Folks, it’s a broad standard. An employee’s religious objection to a COVID-19 vaccine mandate must be based only on an employee’s sincere belief.

The interactive process is key here.

During the interactive process, an employer may question or contest a stated religious belief if it believes the employee is being untruthful or if the objection is actually based on religion. Note that social, political, or similar types of philosophies are not “religious” beliefs. Likewise, a personal belief against vaccines (e.g., “vaccination is wrong.” Or “it won’t work anyway.”) is not a religious objection.

Generally, the interactive process focuses less on the sincerity of the individual’s beliefs and more on whether there is a reasonable accommodation available that won’t create an undue hardship for the business. An accommodation poses an undue hardship if it causes more than a small cost or difficulty on the employer’s business operations.

Medical Exemptions Require the Interactive Process Too.

Again, the interactive process stars in an ADA-based analysis of a claimed medical exemption as well.

What’s the ADA?  The Americans with Disabilities Act (“ADA”) requires employers to engage in an interactive process with an employee to determine reasonable accommodations that help an employee with a physical or mental health impairment perform the essential functions of the person’s job. State and local laws have similar requirements for companies that employ less than 15 employees.

Employers can request certain medical information from an individual with a disability requesting an accommodation for the COVID-19 vaccine. Hopefully, employees aren’t paying $19 for the basic package or $39 for the full documented package from online scammers.

Employer TakeawayA Nod To Ted Lasso

You see, the interactive process is pivotal!

So much of what I see and read would be solved if only an employer engaged in the interactive process on an ongoing basis (remember, it’s not a one and done deal) to determine if reasonable accommodations could be put in place.

Look, football is life! Right, Dani Rojas? Well, the (documented) interactive process is an employer’s equivalent.

It may even save you the cost of a lawsuit.

Join my partners and me tomorrow, September 1, 2021, at Noon EDT, for an hour on “Everything HR Ever Wanted to Know about Mandating COVID-19 Vaccinations in the Workplace

Eric MeyerDavid RennerSid Steinberg, and I will discuss everything from accommodations (including what to do about those bogus ones) to booster shots to privacy concerns to PTO policies and whatever else is on your mind about mandatory vaccinations. So grab your popcorn, grab your chocolate, and buckle up—we’ll talk about ALL the things.

REGISTER here

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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.