How To Claim A Religious Accommodation For COVID Vaccines

 First of all, let me say that I'm a big believer in the COVID vaccines. They work. That being said, if you have a real religious reason (not a political reason) for seeking an exemption to the vaccine, here's what you need to know.

EEOC just updated its guidance on this issue, so if you are serious about seeking a religious accommodation under Title VII, I suggest you read it. Here are some of the key points:

Be ready to answer some questions. EEOC has its own internal form that employers and employees can use as an example. Employers might have their own forms to fill out. Here are the questions EEOC has for its own employees to answer on the form:

1) Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter "religious beliefs"). 

2) Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 

3) What is the accommodation or modification that you are requesting? 

4) List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.  

What is a sincerely held religious belief?: "EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605."

What are alternative accommodations?: "An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

What are the employer's duties regarding an accommodation request?: "Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests."

Can the employer say no?: "Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee."

"If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation." 

What can they ask about my religion?:  "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation."

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

So, when they ask about your religious belief, you need to give specifics. If you say that you believe the body is a temple that you are not permitted to pollute with chemical substances, or that your religion prohibits all vaccines, you will likely need to provide examples. So can you give examples such as not having been vaccinated since you joined this religion, not taking antibiotics, not taking any supplements to boost the immune system, etc? Is there a doctor who can confirm you refused such treatments when ill? Do you also decline alcohol and other similar substances? Do you refrain from eating processed foods and drinks that contain non-organic chemicals? This is the kind of information they are looking for. If you really do follow specific limitations in your medical treatment or consumption of chemicals, then you probably have a legitimate religious exemption. 

Does it have to be a traditional religion?: "The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it."

Some traditional religions do object to the vaccines. However, even Christian Scientists made an exception for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. 

I sincerely believe vaccinations are bad. Is that a religion?: "Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching."

And then there's Florida: Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions that include religion (as mentioned above, federal law already has exemptions for religion). The law details how to claim each exemption, and imposes fines on employers for noncompliance. Here's the form to claim an exemption in Florida. Other states have similar exemptions. If an employer in Florida does not accept an employee's properly completed exemption form, violations can be reported to the Attorney General. The Attorney General has the authority to impose fines for such violations:

• Up to $10,000 for private entities employing less than 100 people
• Up to $50,000 for private entities employing 100 people or more

Public employers, including educational or governmental institutions, are prohibited from imposing COVID-19 vaccination mandates. Violations for public employers can be reported to the Florida Department of Health through VaxPassFreeFL@FLHealth.gov.

Even with Florida's lax standards, if your employer catches you in a lie about your "sincerely held religious beliefs," you can be fired, so I suggest being serious about this. Don't claim a religious belief if you don't have a real one.

I guess watching Fox News is arguably being part of a cult, so maybe there's an argument there for a religious exemption. But seriously, get the vaccine if you can. If you don't have a medical or sincere religious reason, just get it. 

If you have a sincerely held religous belief against the vaccines, you might want to talk to an employee-side employment lawyer in your state about your rights.

Florida and Feds in Vaccine Mandate War - So Far Florida Wins

 I posted previously about OSHA's vaccine mandate. Now, OSHA has temporarily suspended enforcement, due to the 5th Circuit Court of Appeals' entry of a temporary injunction against enforcement. OSHA will appeal, but in the meantime, states like Florida are hurrying to implement let's-kill-our-constituents laws to ban vaccine mandates.

Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions for religion and disability, mask-wearing, having immunity, periodic testing, and pregnancy (federal law already has exemptions for religion, disability and pregnancy):

 A private employer may not impose a COVID-19 96 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; religious reasons; COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment. 

The law details how to claim each exemption, and imposes fines on employers for noncompliance.

In the meantime, there is also the issue of mandates for healthcare workers. So far, the Administration has continued to enforce such mandates. The Supreme Court refused to enjoin enforcement. However, the 5th Circuit, which does not include Florida, did enjoin enforcement in 10 states, and another court which enjoined enforcement in Kansas. If resisting vaccine mandates for healthcare workers isn't the most idiotic and dangerous thing I've ever heard of, it's close. I certainly don't, as a consumer/patient, want any healthcare worker who isn't vaccinated anywhere near me.

Then there's the mandate for federal contractors. One court has enjoined enforcement in Ohio, Kentucky, and Tennessee.

So, there's a mishmash of state laws, and there are a bunch of folks challenging every single vaccine mandate. Vaccines save lives, so the folks pushing these challenges are going to get people killed. But right now, it looks like the mandates are losing. 

Hopefully the Supremes will decide that the federal government does indeed have the right and duty to protect its citizens. Otherwise, anti-vaxers will start challenging other vaccines. Welcome back polio, smallpox, and other diseases we thought were gone. 

Let sanity commonsense prevail.

OSHA Requires Vaccines or Testing For Employees of Large Employers

 OSHA has issued an emergency temporary standard to address COVID in the workplace. This standard is in addition to the previously-issued guidelines on mitigating COVID. The emergency standard applies only to workplaces with 100 or more employees, whereas the guidelines apply to all employers. However, the standard is mandatory and the guidlines are just recommendations for best practices. A summary of the standard is here.

When does it start: I keep seeing articles saying the standard doesn't start until January 4, but I believe this is only partially correct. It says this about when it starts:

The ETS is effective immediately upon publication in Federal Register [this will be November 5]. To comply, employers must ensure provisions are addressed in the workplace by the following dates: 

• 30 days after publication: All requirements other than testing for employees who have not completed their entire primary vaccination dose(s)
• 60 days after publication: Testing for employees who have not received all doses required for a primary vaccination 

So, as I read this, all requirements other than the testing kick in on December 5, and the testing requirement starts January 4.

Preemption: This standard preempts state and local laws to the contrary. So it should immunize employers from Florida and other states' penalties for demanding proof of vaccines.

No retaliation or discrimination: Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness; from discriminating against employees for exercising rights under, or as a result of actions required by, the ETS; and from retaliation for filing an occupational safety or health complaint, reporting a work-related injury or illness, or otherwise exercising any rights afforded by the OSH Act.

Here's what the standard requires no later than December 5:

Vaccine policy: Employers must have a mandatory vaccine policy that allows employees to opt out, but requiring employees opting out to be tested weekly and to mask.

Vaccine status: Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

Paid time off: Employers must give 4 hours paid time off to obtain the vaccine and "reasonable" paid time off/sick leave to recover from side effects of the vaccine.

Notification of positive test: Employers must: (1) require employees to promptly provide notice when they receive a positive COVID19 test or diagnosis; (2) immediately remove any employee with COVID from the workplace, regardless of vaccination status; (3) keep removed employees out of the workplace until they meet criteria for returning to work.

Masks for unvaccinated: Employers must require unvaccinated employees to wear masks that cover both nose and mouth when indoors or when occupying a vehicle with another person for work purposes. A face shield can be worn in addition to a mask, but not instead of. The employee can wear a respirator instead of a mask.

No mask prevention: Employers must allow any employee, customer, or visitor, vaccinated or not, to wear a mask unless a mask would create a serious workplace hazard such as interfering with the functioning of equipment.

Information to employees: Employers must provide employees, in a language and at a literacy level the employees understand: (1) information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; (2) the CDC document “Key Things to Know AboutCOVID-19 Vaccines”; (3) information about protections against retaliation and discrimination; and (4) information about laws that provide for criminal penalties for knowingly supplying false statements or documentation.

Records available to employees: Employers must make available to the employee or a representative the employee's vaccine documentation and test results. Even more interesting, employers have to make available to employees or representatives the aggregate number of fully vaccinated employees at the workplace along with the total number of employees at that workplace.

Here's what the standard requires no later than January 4:

Weekly testing for unvaccinated: Employers must mandate employees who aren't vaccinated to have weekly COVID testing. Employers do not have to pay for this testing. 

This means that low income employees will have few options, even if they qualify for a disability or religious exemption. The vaccine is free, but testing is not. Employers can voluntarily assume the costs, but don't have to, with exceptions. 

Employment agreements could require employers to pay for testing. Unions may have collective bargaining agreements that require employers to pay, which is another great argument for unionizing. 

There could also be state and local laws requiring employers to pay. Not in Florida, of course, because the Florida legislature and governor aren't about to help employees anytime soon.

For information on what exemptions apply and whether you can be fired for refusing to be vaccinated, see my post Can My Employer Make Me Get Vaccinated?

Can My Employer Make Me Get Vaccinated?

This is a question I get a lot these days. Yes, employers can force employees to be vaccinated, with exceptions. Some exceptions that come to mind are religious, disability, and pregnancy. 

Yes, employees can be terminated for refusing to vaccinate, unless they fall within a legal exception. If they do fall within an exception, then the issue will be whether there is a hardship on the employer. If the employer can prove there is a hardship, they may still be able to terminate, even with an exception.

Same answer on hiring. However, employers aren’t going to be allowed to ask potential employees if they are vaccinated during the interview process. I believe this will play out similarly to any other medical issue. What I think will happen is the employers will be able to make a conditional offer of employment, and then the employee will have to disclose whether or not vaccinated, and whether or not there is an exception.

The EEOC has issued a pretty comprehensive guidance on COVID, and it includes vaccines. It addresses issues like disabilities, etc. For instance:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? 

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

 Florida has banned some businesses from demanding proof of vaccinations from employees. I believe some other red states have done so as well. SMH. In other states without the ban, employers may be allowed to demand proof. 

Even Florida doesn't seem to have banned all employers from demanding proof. The statute says:

381.00316 COVID-19 vaccine documentation.—
 1122         (1) A business entity, as defined in s. 768.38 to include
 1123  any business operating in this state, may not require patrons or
 1124  customers to provide any documentation certifying COVID-19
 1125  vaccination or post-infection recovery to gain access to, entry
 1126  upon, or service from the business operations in this state.
 1127  This subsection does not otherwise restrict businesses from
 1128  instituting screening protocols consistent with authoritative or
 1129  controlling government-issued guidance to protect public health.
 1130         (2) A governmental entity as defined in s. 768.38 may not
 1131  require persons to provide any documentation certifying COVID-19
 1132  vaccination or post-infection recovery to gain access to, entry
 1133  upon, or service from the governmental entity’s operations in
 1134  this state. This subsection does not otherwise restrict
 1135  governmental entities from instituting screening protocols
 1136  consistent with authoritative or controlling government-issued
 1137  guidance to protect public health.
 1138         (3) An educational institution as defined in s. 768.38 may
 1139  not require students or residents to provide any documentation
 1140  certifying COVID-19 vaccination or post-infection recovery for
 1141  attendance or enrollment, or to gain access to, entry upon, or
 1142  service from such educational institution in this state. This
 1143  subsection does not otherwise restrict educational institutions
 1144  from instituting screening protocols consistent with
 1145  authoritative or controlling government-issued guidance to
 1146  protect public health.
 1147         (4) The department may impose a fine not to exceed $5,000
 1148  per violation.
 1149         (5) This section does not apply to a health care provider
 1150  as defined in s. 768.38; a service provider licensed or
 1151  certified under s. 393.17, part III of chapter 401, or part IV
 1152  of chapter 468; or a provider with an active health care clinic
 1153  exemption under s. 400.9935.
 1154         (6) The department may adopt rules pursuant to ss. 120.536
 1155  and 120.54 to implement this section.

So, as I read this, Florida government employers and educational institutions may not demand proof of vaccination from employees, but private employers may ask employees for proof (but possibly not if the employees are also patrons or customers of the business). Healthcare providers are exempt and may demand proof from anyone.

Nothing in this statute keeps anyone from asking the question, only from demanding proof, so even those employers who aren't allowed to demand proof can fire employees if they find out they lied about vaccines. And there's real reason for employers to want to know this information, because OSHA has different safety standards for workplaces with 100% vaccinated employees versus those with only partially vaccinated workplaces. 

In general, employers can ask if you've been vaccinated, and can demand you be vaccinated, with some exceptions.

Am I Entitled to Paid Sick Time For Side Effects From My COVID Vaccine?

Many employers are mandating vaccines for employees returning to work. But are they required to pay you for the time you take off work to get the vaccine and for any side effects? Most likely not, but there are some jobs and some states where you might be entitled to this.

In general, there is no law requiring any sick leave in my home state of Florida, much less paid sick leave. Other states, like New York, Pennsylvania, New Jersey, and California, offer some protections for certain employees so keep an eye on those state laws. 

If you are a federal employee you may be protected under the American Rescue Plan Act. That law provides paid leave for up to 600 hours of leave for federal employees who are suffering side effects from the vaccine, under quarantine, caring for someone under quarantine, and even for getting the vaccine.

For employees of other employers, they ceased being required to give you paid leave for COVID-related illnesses under The Families First Coronavirus Response Act as of December 31, 2020. However, for small and midsize companies, if they choose to give employees paid leave for up to 10 days, which includes leave for vaccine side effects, they get a tax credit. So it makes sense for employers to offer this. Still, it's voluntary. 

Family and Medical Leave applies if you’ve been employed at least a year and they have at least 50 employees within 75 miles of your work location. However, for you to have a qualified serious health condition as required for protected leave, you had to be incapacitated for 3 days and visit a doctor at least once. Most folks have side effects for only 2 days or less, so this probably doesn’t apply to you. If it does, you were entitled to up to 12 weeks of leave, and your employer had to restore you to the same or an equivalent position and cannot hold that leave against you.

If you are in a unionized workplace, the collective bargaining agreement should protect you from being punished for being out sick. Just make sure you do everything required of you when you call out.

 If the company offers sick leave, they should allow you to use it for this purpose. If they required a vaccination for you to return to the workplace, then they should also understand that side effects for a couple days are expected.

Even if they don’t voluntarily offer sick leave for this, punishing employees who are doing the right thing by getting vaccinated is a jerk move. Employers should really consider how their policies affect morale and workplace health and safety. If you are sick from the vaccine, I suggest following the employer’s sick leave policy and making sure you call out timely. Read your handbook if they have one and make sure you follow all the requirements for calling out sick so you don’t give them an excuse to punish you.

Yes, You Probably Can Be Fired For Refusing a COVID Vaccine

 Many employers are mandating that employees get COVID vaccines, for good reason. COVID is a deadly disease that has killed hundreds of thousands of Americans and shut down many businesses. Employers want to get back to work. 

Private sector employers can likely mandate vaccines with exceptions:

Disability: Employees who have a disability that prevents them from being vaccinated will be entitled to a reasonable accommodation under the Americans With Disabilities Act and the Florida Civil Rights Act. 

Religion: Employees who have religious beliefs that prohibit vaccinations are entitled to a religious accommodation under both Title VII and the Florida Civil Rights Act. Pregnant employees whose medical professionals advise against vaccinations are also legally protected.

Other discrimination: also run the risk of a discrimination claim if they only require some, but not all, employees to be vaccinated. For instance, they cannot have a requirement that has a disparate impact based on race, age, sex, national origin or other protected status.

Liability for not mandating vaccines

On the flip side, employers who do not mandate vaccines face some potential liability for not maintaining a safe workplace. That would include both OSHA violations and potential liability to non-employees who are exposed due to the employer’s negligence, such as customers and family members of employees.

So yes, your employer can very likely fire you for refusing to get vaccinated. 

The EEOC has issued a pretty comprehensive guidance on COVID, and it includes vaccines:

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.2.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5. below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d).  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.  

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page. 

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r).  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.  

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. 

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2., and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean: 

• Information about an individual’s genetic tests;
• Information about the genetic tests of a family member;
• Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
• Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
• Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves. 

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.