October 11, 2021
While the public health emergency of COVID-19 continues, vaccination regulations have been introduced in both public and private workplaces. These mandates include state, state, and local requirements for certain employees to be fully vaccinated or risk dismissal. This blog discusses the process for handling and handling requests from employees for medical and religious exemptions from vaccination requirements related to disability.
Here is an overview of the various vaccine mandates that affect many Washington workers.
The federal government recently issued vaccination mandates, link here, for most federal employees, healthcare workers, and federal contractors, and private and public jobs with 100 or more employees.
At the state level, Proclamation 21-14 (August 9, 2021) requires healthcare workers, including some community workers, to be fully vaccinated by October 18 (two weeks after the last vaccination). This order also applies to long-term care workers and most government employees. Exceptions can be made for people with disability-related medical reasons or for serious religious reasons, but there is no way for employees to have regular COVID tests instead of vaccinations.
Proclamation 21-14.1 (August 20, 2021) clarified and expanded the vaccine requirements. This order also led to other changes, such as clarifications regarding vaccination of contractors. Proclamation 21-14.2 (Sept. 27, 2021) updated government vaccination regulations to include local contractors who are entering into contracts with specific government agencies. The governor has also encouraged local governments to introduce similar vaccination regulations for their employees.
A number of local governments recently issued their own vaccine mandates. Vaccinated cities include Bellevue, Bellingham, and Shoreline. You can find sample guidelines and forms on our website: COVID-19 operational and personnel issues.
What is adequate accommodation?
Reasonable accommodation is any change in the work environment or the way work is done that enables a person in need of housing to enjoy equal employment opportunities. Reasonable accommodation can include changes to a job position, work environment, policy, practice, or procedure. An employer may also consider providing additional personal protective equipment (PPE), changing a workplace location, adding social distancing, or creating different shift assignments. Teleworking could also be viewed as reasonable accommodation in some situations, depending on the worker’s obligations and the policies of his employer.
Corresponding EEOC guide (Section K.6):
Managers and supervisors responsible for communicating with employees about employer’s vaccination compliance should know This is how you can recognize an employee with a disability when it comes to accommodation and know who to forward the application to for full review. As a best practice, an employer implementing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should inform all employees that the employer will individually consider requests for reasonable accommodation based on disability or religious belief.
Disabilities and religious beliefs are two reasons why accommodation is considered and, where appropriate, provided to an employee upon request and following an interactive process between an employee and an employer, often through a staff representative. Adequate precautions were required by law long before the current COVID-19 pandemic and the resulting vaccination regulations.
The legal requirements can be found in Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA), the Washington Law Against Discrimination (WLAD), and other applicable law .
What is the process for examining an adequate accommodation request?
Anyone eligible for disability / medical or religious beliefs exemption can request an adequate assessment of the facility. The reasonable accommodation assessment is a flexible interactive process with an exchange of information between an employee and their employer.
This process takes into account an employee’s position, the employer’s business needs, and the business needs of a covered site contractor (if applicable). The requested placement of an employee does not have to be granted if this would mean unreasonable hardship for the employer in terms of considerable difficulties or costs. This is a complex area of the law and all employers are encouraged to work closely with their attorneys to put in place compliant policies and procedures, including regarding coronavirus vaccines and reasonable precautions.
If a worker is entitled to reasonable accommodation related to a disability or righteous provision for faith under current workplace vaccination regulations, the worker is exempt from vaccination and the employer should consider and provide reasonable accommodation, if there is no undue hardship to perform.
Disability / Medical Exemptions
Medical conditions or disabilities that might exclude people from COVID-19 vaccinations may include allergic reactions to vaccinations, pregnancy symptoms, or certain chronic illnesses or other disabilities identified by an employee’s health care provider. As far as legally permissible, employers can obtain medical documents from employees who apply for accommodation suitable for the disabled. Corresponding EEOC guide:
If not obvious or already known, an employer can ask questions or request medical records to determine whether the worker’s disability requires accommodation, either the one requested or a different one. Possible questions for the employee may be: (1) how the disability leads to a restriction, (2) how the requested placement effectively addresses the restriction, (3) whether another form of placement could effectively solve the problem, and (4) how a proposed placement enables the employee to continue to perform the “essential functions” of his position (ie basic work duties).
Exceptions granted based on sincere religious beliefs, practices or customs would allow employees to continue working without vaccination.
Title VII defines “religion” as “all aspects of religious observance and practice and belief”, not just practices prescribed or prohibited by an individual’s belief. Social, political, or economic philosophies and mere personal preferences are not “religious” beliefs within the meaning of Title VII. However, it is not easy to distinguish one religious belief from other beliefs. In Thomas v. Rev. Vol., 450 US 707, 714 (1981) the US Supreme Court stated:
Determining what a “religious” belief or practice is is often a difficult and delicate task. . . . However, the solution to this question is not about a judicial perception of the belief or practice in question; Religious beliefs must be unacceptable, logical, consistent, or understandable to others to deserve protection under the First Amendment.
Employers may inquire about the sincerity or religious nature of an employee’s beliefs when considering an application for exemption from religious beliefs. the EEOC Religious Housing Compliance Manual provides the following guidelines for employers regarding religious discrimination claims:
An employee who fails to comply with a reasonable request from an employer to verify the sincerity or religiosity of a belief runs the risk of losing any subsequent allegation that the employer wrongly refused placement.
However, a person’s sincere religious beliefs need not follow the principles of any particular religion. For example, just because a particular church has encouraged its members to receive the COVID-19 vaccines, can an individual member hold a sincere religious belief that is contrary. The EEOC guidelines include:
[T]The employer should normally assume that a worker’s request for religious placement is based on a genuine religious belief, practice, or compliance. However, if an employee requests a religious arrangement and facts are known to an employer that provide an objective basis for questioning either the religious character or the sincerity of a particular belief, practice, or tradition, the employer would be entitled to request additional assistance Information.
Confidentiality of Protected Information
Employers are required to keep confidential information shared by an employee or that an employee has asked for reasonable accommodation, whether for reasons related to disability / medical problems or religious beliefs.
Under the ADA, it is illegal for an employer to disclose that an employee is receiving reasonable accommodation or to take revenge against an employee who requests accommodation. The Public Records Act (PRA) also protects information indicative of an employee’s religious beliefs or affiliations (see RCW 42.56.235).
I suggest that employers, their supervisors, and staff representatives work closely with their attorneys when it comes to handling exemption and placement applications and the file management associated with those applications.
MRSC is a private, not-for-profit organization serving local government in Washington State. Eligible government agencies in Washington state can use our free Ask MRSC in-person service to get legal, political, or financial questions answered.