The science, guidance, and regulations related to workplace safety policies for the COVID-19 pandemic are constantly changing (goodbye federal vaccine mandate!). As employers struggle to keep up, they are confronted with the decision of what safety policies to adopt, including, for many, whether to require their employees be vaccinated against COVID-19. For those employers who already require vaccinations, they now must decide whether to extend the requirement to the COVID-19 vaccination booster shots. Some of the common struggles employers may confront with these decisions are discussed below. 

Employers must be prepared to evaluate an employee’s request for accommodation (i.e., exemption) from a COVID-19 safety policy

Employers of all sizes struggle with the process of evaluating accommodations from COVID-related policies at least the first couple times they go through it (and really should have experienced employment counsel assist). The largest employers, who have trained HR specialists, may get more comfortable with the process fairly quickly, possibly because trained HR specialists understand the context of the process and are accustomed to making potentially uncomfortable or difficult personnel decisions within the framework of employment laws. However, it is not unusual for mid-size and smaller employers to struggle with the process even after they’ve been through it a time or two. This may be because it is more personal for them, both to assess the sincerity of their employees’ beliefs, and to assess the hardship or danger an accommodation poses to their operations and workforce.

Judgment Calls in Religious vs. Disability Accommodations

The process of evaluating religious accommodations from COVID-related policies is often more difficult for employers than evaluating disability accommodations. With a disability accommodation, the employer is able to rely on a licensed medical professional to make the judgment call on whether the disability is genuine and truly contraindicated by a vaccine. With a religious accommodation request, the employer is the one who must make that preliminary judgment call, of whether the religious belief is not a political belief or personal view, is sincerely held, and if it does conflict with the COVID-related policy. Employers are not religion experts or constitutional scholars to have the experience and knowledge to determine whether something is a political belief or a religious belief. After the employer makes the determination of whether the religious belief is sincerely held, then, as with a disability accommodation, the employer must determine whether the accommodation poses an undue hardship to the company. Generally, employers are much more comfortable with this part of the process compared to the judgment call on the sincerity of the religious belief.

Is there official guidance on COVID as a disability?  Yes!

Many employers ask, “Is the illness associated with COVID-19 a disability? Do I need to accommodate it like other disability?” Of course, the legal answer is that it depends. Thankfully, when evaluating each unique situation, we now have some official guidance on the issue. The EEOC updated its technical guidance on December 14, 2021, to offer more clarity into when COVID or Long-COVID could qualify as a disability. Previously, there was not much in the way of specific guidance on this issue. To experienced employment counsel, the guidance is not anything surprising and it is line with how we have been advising employers on this issue based on the usual application of federal and state disability laws. Additionally, while guidance like this is not binding authority that a court must rely on, it will undoubtedly be cited in lawsuits and persuasive for courts when the inevitable disability discrimination claims are filed.

What issues may arise with additional vaccination doses/booster shot requirements?

We are primed to be confronted with issues where the obligation to get additional doses of the COVID-19 vaccine or booster shots starts to compound conflicts with religious beliefs or disabilities/medical conditions. The EEOC advises that when considering the sincerity of a request for religious exemption to a vaccine mandate, prior inconsistent conduct is relevant to the question of sincerity, including the degree of adherence. Practically, many employers ask if the requesting employee has been vaccinated for other things and if so, when (e.g., recently as an adult, or last as a child when it wasn’t up to them). But what about those who have strong religious beliefs that conflict with the vaccine, they decided to get the vaccine anyway, but are now being asked to get more shots and it pushes them too far? Is it fair to count the fact that they were willing to acquiesce once against them? Is it fair to minimize or even discredit their beliefs over someone who refused to get the original vaccine, when arguably the person who, against their beliefs, agreed to get the vaccine was doing what the employer and society asked them to do? At this point, the solution to the issue is to look at the whole picture, but it still requires a potentially uncomfortable assessment of an employee’s beliefs and actions.

With respect to additional doses of vaccines/boosters and disabilities, employers should not be surprised if they get new medical notes purporting to exempt employees from required boosters who were vaccinated. It is not inconceivable that folks with medical conditions may have been cleared by a doctor to receive the original vaccine, but won’t be for subsequent doses. Or, if someone suffered an unusual or severe reaction to the original vaccine, they may not be cleared to get subsequent doses. Luckily for employers, this is largely up to the individual and their doctor to decide, but employers will subsequently be tasked with determining whether they can provide a new disability accommodation without undue hardship.

Greenberg Glusker’s Employment Law Department is ready to assist employers navigate these issues and the others that arise as things constantly evolve.