Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) As outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.
Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not impose an “undue hardship,” to qualified employees who have a disability. A person with a disability has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. A qualified employee or applicant with a disability is a person who, with or without a reasonable accommodation, can perform the essential functions of the job. If an employee or applicant with a disability requests a reasonable accommodation, employers must engage in an interactive process. In doing so, EEO guidance permits employers to consider whether complications created by the COVID-19 pandemic create a “significant difficulty” in acquiring or providing certain accommodations. For example, it may be more difficult for an employer to provide an employee requesting an accommodation with a temporary re-assignment.
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of religion. Employers are required to provide a reasonable accommodation to employees with a “sincerely held” religious belief unless doing so would cause more than a minimal burden. In Draper v. U.S. Pipe & Foundry Co., the court held that if the proposed accommodation would “either cause or increase safety risks or the risk of legal liability for the employer” the accommodation would cause more than a minimal burden as “Title VII does not require employers to test their safety policies on employees to determine the minimum level of protection needed to avoid injury.” As we have previously reported, based on EEO guidance, an employer should ordinarily assume that a request for religious accommodation is based on sincerely held religious beliefs. Employers may, however, ask for an explanation as to how an employee’s religious belief conflicts with the vaccination requirement. It is important to note that social, political, and economic views; personal preferences; and non-religious concerns about the possible effects of the vaccine are not “religious beliefs” subject to a reasonable accommodation under Title VII.
2. Key Take Aways for Employers
Although the ETS is stayed, employers would be wise to take active steps to ensure compliance if the stay is lifted. Employers have flexibility to establish their own processes that permit employees to request a medical exemption from the COVID-19 vaccination requirements. Some best practices are as follows:
- Employers should ensure that all documentation confirming recognized clinical contraindications to COVID-19 vaccinations for employees seeking a medical exemption are signed and dated by a licensed practitioner, who is not the individual requesting the exemption and is acting within their respective scope of practice based on applicable state and local laws.
- This documentation should contain all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the employee to receive and the recognized clinical reasons for the contraindications.
- Additionally, an employer can require a statement by the authenticating practitioner recommending that the employee be exempted from COVID-19 vaccination requirements and explaining the reasons for that recommendation.
In thinking through medical accommodation requests, employers should also remember that employees who are vaccinated may still require a reasonable accommodation. Employees with certain pre-existing mental health conditions such as anxiety disorder, obsessive compulsive disorder, or post-traumatic stress disorder may have more difficulty handling the disruption to daily life caused by COVID-19. Employers should treat these requests the same as any other request for a medical accommodation and engage in the interactive process to determine if a reasonable accommodation can be provided.
Employers also have flexibility to establish their own processes that permit employees to request a religious exemption from the COVID-19 vaccination requirements. Employers should document requests for religious exemptions. Employers may also require an employee to submit, in writing, that: (1) they have a sincerely held belief that prohibits them from being vaccinated; and (2) that belief is religious rather than secular or scientific in nature. Generally, if an employee requests a religious exemption based on a personal philosophy, if an employee’s request for an accommodation does not readily demonstrate that their belief is sincere or religious in nature, or if an employee makes a religious exemption request that is too generalized to understand, such as a statement that “my religion” prohibits vaccination, employers may legitimately ask for more information about or question the claimed religious belief, such as:
- request additional information about the employee’s belief system, the nature and tenets of their asserted beliefs, and how they follow the practice or belief;
- review written religious materials describing the belief or practice; and
- obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system.
As a final note, employers must also consider the impact of weekly COVID-19 testing. This is because, if an employee is entitled to a reasonable accommodation due to a disability or sincerely held religious belief that prevents them from being vaccinated, the employee will likely need to be tested weekly under the ETS. Specifically, OSHA states that “[t]he ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker’s sincerely held religious belief, practice or observance, the worker may be entitled to a reasonable accommodation.”