When does a COVID-19 vaccine accommodation cause an unnecessary hardship? – Community News
Covid-19

When does a COVID-19 vaccine accommodation cause an unnecessary hardship?

Employers requiring employees to show proof of coronavirus vaccination must have robust policies and procedures in place to address medical and religious concerns. They also need to know how to identify when housing would create an unnecessary burden on the business.

Federal and state anti-discrimination laws require employers to seek reasonable accommodations for employees who object to receiving a COVID-19 vaccination based on medical conditions or genuine religious beliefs.

Employers may offer alternative housing or reject a job change that would cause an unnecessary hardship to the company. They should note, however, that the evaluation of “unnecessary hardships” under the American with Disabilities Act (ADA), which covers facilities for the disabled, is different from that under Title VII of the Civil Rights Act of 1964, which covers religious facilities.

Many employers are accustomed to judging requests against the undue hardship standard for disabled facilities, which is much stricter than the “de minimis” standard for requests for religious accommodation, explains Joseph Kroeger, a lawyer at Snell & Wilmer. in Phoenix.

[SHRM members-only Q&A: How do I know if a work accommodation will create an undue hardship?]

Here’s what employers need to know when a property could cause unnecessary trouble under these laws.

Disabled Accommodations

The Equal Employment Opportunity Commission (EEOC) has regularly updated its guidelines in response to questions about workplace vaccination. Significantly, the agency said the federal anti-discrimination laws it enforces do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated against COVID-19. However, employers should consider reasonable accommodations when employees refuse to be vaccinated for medical and disability-related reasons, including pregnancy-related disabilities.

If an employer denies a housing request under the ADA on the basis of undue hardship, the decision must be based on “an individualized assessment of current circumstances showing that a specific reasonable accommodation would cause significant difficulty or expense,” according to the EEOC. Employers should consider the following factors:

  • The nature and cost of the required accommodation.
  • The facility’s total financial resources and number of employees, as well as the effect on the facility’s costs and resources.
  • The employer’s total financial resources, size, number of employees, and type and location of facilities (if the facility evaluating the request is part of a larger entity).
  • The employer’s type of business, including the structure and functions of the workforce, as well as the geographic separation and administrative or tax relationship of the facility involved in creating the housing with the employer.
  • The impact of the property on the facility’s operations.

If an employee cannot be vaccinated against the coronavirus due to disability, the employer must engage in an “interactive process” (a back and forth dialogue with the employee) to determine whether a reasonable accommodation can be made.

Leslie Wallis, an attorney at Ogletree Deakins in Los Angeles, said the steps to take to investigate reasonable accommodations typically include obtaining information from the employee’s medical provider about the employee’s need for accommodation and the expected duration of the accommodation.

Reasonable accommodations for employees who cannot be vaccinated may include working remotely; a combination of weekly COVID-19 testing, masking and physical distancing; moving the employee to their own workplace; or possibly transferring the employee to a position that does not require interaction with the public or other employees.

“An employer has the freedom to choose from effective adjustments,” according to the EEOC’s online COVID-19 resources. “If requested housing would lead to undue hardship, the employer should provide alternative housing if one is available without undue hardship.”

The agency recommends that employers and employees consult the Job Accommodation Network website as a source of information on various types of accommodation.

Religious accommodations

Title VII of the Civil Rights Act requires covered employers to shelter employees who refuse to be vaccinated on the basis of a genuine religious belief, practice or observance unless an accommodation would cause undue difficulty for the company.

In particular, the ADA’s strict standard of undue hardship — which determines whether the change would cause “significant problems or expense” — does not apply to Title VII religious accommodation requests.

Courts have determined that anything more than a “de minimis” – or trivial – price can create undue hardship in religious accommodation cases, and the EEOC noted in its opinion that the costs reduce the risk of spreading the coronavirus and other include security risks.

Employers should consider objective information, the EEOC said, such as whether the employee works outdoors or indoors; works alone or in a group; or has close contact with colleagues, customers or other business partners.

Michael Puma, an attorney at Morgan Lewis in Philadelphia, noted that employers are facing an influx of requests for religious accommodation.

“Employers may consider the number of requests for similar waivers and/or the cumulative costs or burdens of providing accommodations to others when assessing whether granting a request for accommodations creates undue difficulty,” he explained. from.

The most considered accommodation for not getting vaccinated is wearing a mask and getting tested for COVID-19 once or twice a week, Kroeger noted. According to the EEOC, he said, it appears that employers may take the view that the cost of such testing, particularly for a large group of workers applying for religious exemptions, is more than minimal and can therefore be rightly rejected by an employer.

The EEOC noted that employers “cannot rely on speculative hardships when faced with religious objections from an employee, but rather must rely on objective information.”

Raeann Burgo, an attorney at Fisher Phillips in Pittsburgh, said employers should remember to participate in the interactive process and document it, just as they would for a disability accommodation request.

Consistent practices

Some employers have already implemented vaccination requirements for their workplaces as part of company policy or in accordance with federal and state mandates. In addition, many companies with at least 100 employees can decide whether to require vaccination or allow masking and weekly COVID-19 testing under a temporary emergency standard (ETS) published by the Occupational Safety and Health Administration (OSHA) on Nov. 5.

Although a federal appeals court has temporarily halted the ETS as it considers it a legal challenge, employers still need to prepare for the rule, which would require employers to prepare written COVID-19 vaccination and testing policies. If the ETS survives the legal challenges, unvaccinated workers will be required to wear masks by December 5 and take a weekly negative COVID-19 test from January 4.

Fisher Phillips advised employers to prepare for the ETS as if it were going into effect, but wait to implement the measures until the final court outcome is certain.

“HR should start preparing communications it will use in passing information to employees about its vaccine policies,” Burgo said. “This includes a vaccine policy itself and a reasonable accommodation policy.”