Lewis Kappes

As the surge of the COVID-19 Delta variant continues to rage and the news is filled with bitter debate about masks and vaccines, employers are facing some tough challenges regarding workplace and patron safety. Chief among those is the question – to mandate or not to mandate the COVID-19 vaccine for employees. For some employers, the federal government is soon to provide an answer to this question. For other employers, the conundrum remains one to grapple with alone.

On September 9, 2021, President Biden announced that certain Executive and Administrative rules will be implemented requiring that certain employers mandate that their employees be vaccinated against COVID-19 and/or engage in weekly testing. Although most of these rules have not yet been formulated or promulgated, they are expected to affect federal employees and federal contractors, employers with 100+ employees, workers in most health care settings that receive Medicare or Medicaid reimbursement, employees at Head Start and Early Start programs, and teachers and program staff at certain federally-operated schools.

In addition to vaccine mandates and testing, the federal rules are expected to require employers with 100+ employees provide paid time off for employees to get vaccinated and/or recover from side-effects of vaccination.

Specific Emergency Temporary Standards (ETS) and other rules are expected to be released in the coming weeks with information regarding the details of these federal requirements. In the meantime, employers that expect to be effected should begin planning how to implement vaccine mandates if they are not already mandating vaccination for their employees.

Even for employers that are not affected by the forthcoming federal requirements, applicable law permits all employers to mandate that all their employees who are physically present in the workplace are fully vaccinated for COVID-19. Such policies must be applied in a consistent manner to all similarly situated employees. However, if an employer mandates the vaccine, it must provide exemptions and accommodations for employees with a qualified disability or sincerely held religious belief that prevents that employee from becoming vaccinated unless that accommodation would pose an undue hardship on the operation of the employer’s business. If an employee claims a medical or religious exemption, the employer is required to engage in an “interactive dialogue” with the employee to gather relevant information and discuss possible accommodations.

For an employee that is claiming the need for an accommodation due to a qualified disability, the employer may request medical certification from the employee’s health care provider. Assuming the medical information provided substantiates that the employee has a qualified disability and is unable to receive the COVID-19 vaccination because of that disability, the employer should discuss possible alternatives with the employee to determine if other measures may result in similarly effective disease mitigation. For example, is the employee able to work remotely? Is an alternative position for which the employee is qualified open into which the employee could be transferred to eliminate or reduce risk of disease? Are effective additional PPE and/or isolation measures available? Would a short-term (one month or less) unpaid leave appropriately accommodate the employee until vaccination is available for that employee? Etcetera. If there truly is no accommodation available that would permit the employee to perform the essential functions of his or her job without posing a direct threat to the health and safety of the employee or others, then termination of employment may be considered, after an individualized threat assessment is conducted. However, it is highly advisable to obtain the advice of legal counsel before moving in that direction.

For an employee that is claiming the need for a religious accommodation, the employer is limited regarding what information can be requested to substantiate the claim. An employee is presumed to have a sincerely-held religious belief unless there is overwhelming evidence that the employee is not being truthful. This is true even if religious leadership or main practices of the employee’s religion do not support the belief the employee is claiming. Simply put, there is little the employer can do to challenge the sincerity of a religious belief. Instead, the employer should focus on the reasonableness of the accommodation. Like when an employee is seeking a disability accommodation, the employer should have a conversation with the employee to determine what, if any, reasonable accommodations are available.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued helpful guidance for employers on the topic of vaccines and exemptions – https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K (Section K addresses vaccines).

If an employer obtains information regarding an employee’s vaccination status, that information is confidential medical information and should be securely kept in the employee’s separate medical file. If the employer is providing vaccination to its employees, the law restricts screening medical questions that must be asked to administer the vaccine to only those questions that are necessary as job related and consistent with business necessity.

Vaccine mandates, and particularly the medical and religious exemptions, and all the related details can be daunting and complicated to implement. Employers should not hesitate to reach out to legal counsel to help them navigate this newly developing area and all its trappings. The attorneys of Lewis Kappes are well-versed in the legal requirements related to COVID-19 vaccinations and stand ready to assist you and your team with policy development, implementation, and general questions.

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