Author: Philip M. Berkowitz
Article courtesy of Philip Berkowitz & Littler
Lawyers representing management need to understand how best to advise clients on how to respond to requests from employees to be exempted from these policies.
The Delta variant is wreaking havoc on return-to-work initiatives. Nevertheless, employers inevitably will require most employees to return to office, whether or not with hybrid schedules, and will require that they be vaccinated. This may happen in fits and starts, and not always with the willing participation of employees, many of whom enjoy working from home, or may be unable to be vaccinated. Lawyers representing management therefore need to understand how best to advise clients on how to respond to requests from employees to be exempted from these policies.
Let’s review the basics. In its recently amended Technical Assistance Guidance, the Equal Employment Opportunity Commission (EEOC) made clear that an employer may require COVID-19 vaccines for employees, and exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace, because their presence would pose a direct threat to the health or safety of others.
Many employees are happy and eager to return, while others are reluctant to do so, citing a potpourri of reasons—anxiety about mass transit, worry about contracting the disease or transmitting it to children or elderly parents, concern that the employee or a member of their immediate family has a serious health condition that may be compromised by exposure to the virus, and, in some cases, religious objection to the vaccine.
But the law mandates that employers accommodate requests to be exempt from COVID-19 vaccination (and in essence from return-to-office mandates) only either (1) for a medical reason that rises to the level of a disability under federal, state, or local law, or (2) because of a sincerely held religious belief.
The federal Americans with Disabilities Act (ADA), as well as many local laws, protect qualified individuals with disabilities from employment discrimination, and require employers to accommodate a disability unless doing so would constitute an undue hardship to the employer.
Similarly, Title VII of the Civil Rights Act of 1964, as well as state and local law, require employers to accommodate sincerely held religious beliefs.
The reasonable accommodation most likely at issue here, again, is exemption from the vaccine or return-to-work mandate. Thus, if the employee can show that they are disabled or have a sincerely held religious belief that would prevent them from being vaccinated, then the employer must provide a reasonable accommodation, unless doing so would impose an “undue hardship” on the operation of the Company’s business—i.e., a significant difficulty or expense.
If the employer believes it cannot satisfy the employee’s requested accommodation, then the employer must discuss the difficulties that the request would pose for the employer and suggest potential alternatives that may address the person’s accommodation needs. This is often referred to as the “interactive process” (or what the New York City Human Rights Law calls a “cooperative dialogue”), and the dialogue must continue until the request for accommodation can be granted or denied.
Once the cooperative dialogue is complete, New York law mandates that employers memorialize in writing whether any accommodation has been granted or denied, and provide a copy of the report to the employee who requested the accommodation (or to the employee’s surrogate, if someone else requested the accommodation on the employee’s behalf).
Importantly, the employer may be permitted to push back and seek information to ascertain that the employee in fact has a disability that requires accommodation, or that the employee in fact has a sincerely held religious belief.
Is There a Disability?
First, it is important to remember that the issue of whether an individual is disabled for the purposes of anti-discrimination laws is entirely different from whether an individual may be entitled to short-term or long-term disability benefits. Employers may make a mistake if they leave responsibility for these issues in the hands of employees who administer benefit entitlement, as opposed to those who have familiarity with anti-discrimination policies and laws.
In many instances, both the disability (as defined by anti-discrimination law) and the type of accommodation required will be obvious, and thus there may be little or no need to engage in any discussion.
But where the disability or need for accommodation is not obvious, the employer may need to ask questions concerning the nature of the disability and the individual’s functional limitations in order to identify an effective accommodation, and whether the accommodation sought is the only or the most appropriate one.
The individual with a disability does not have to be able to specify the precise accommodation. However, he or she does need to be able to describe the problems posed by coming to the office. The employer is entitled to know that the individual has a covered disability for which he or she needs a reasonable accommodation.
Therefore, the employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities. (The ADA requires that employers keep all medical records and information confidential and in separate fi les from employee personnel fi les and from other employees’ medical information.)
In requesting documentation, the employer should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation.
The employer’s response 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” is similarly nuanced.
The EEOC guidance explains that 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 the 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 may be justified in requesting additional supporting information.
When faced with an employee request for an exemption from a mandatory vaccination requirement based on religion or personal belief, employers must assess three questions: (1) is the belief religious? (2) is the belief sincerely held? and (3) would providing a reasonable accommodation impose an undue hardship on the employer?
The EEOC lists four factors to consider in determining whether a belief is sincerely held:
- Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
- Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
- Whether the timing of the request renders it suspect (e.g., 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.
Employers must consider all of these factors, as none is dispositive. This is a heavily fact-specific analysis and employers should be very cautious in evaluating the sincerity of the employee’s belief as courts have recognized that an individual’s beliefs can change over time.
Recommended Forms for Dialogue
Facing a flood of reasonable accommodation requests, employers are developing reasonable accommodation request forms, tailored to the nature of the objection, which can be provided to the employee.
Among other provisions, the form may include an authorization that the employee and their health care provider (assuming a claim of disability) will sign allowing the Company to communicate directly with the employee’s health care provider. This is designed to reduce delays in returning medical paperwork and ultimately accommodating the employee.
The disability questionnaire should contain targeted questions designed to provide accurate, relevant, and thorough information regarding the employee’s needs and capabilities. However, it should request that the health care provider not provide information regarding the employee’s diagnosis, which employers are prohibited from requesting in certain jurisdictions.
In the case of a claim of religious exemption, employers may ask the individual to identify the sincerely-held religious belief, practice, or observance that they believe conflicts with a vaccination mandate; to state how the belief conflicts with the Company’s vaccination mandate, and identify the accommodation they are requesting.
Another area of inquiry to test whether the religious belief is sincerely held may be whether, since reaching the age of 18, the employee has received any vaccinations, and whether they have taken any pharmaceutical drugs, whether prescription or otherwise.
The employer may also reasonably request a statement from a religious leader explaining the nature of the religious objection.
Again, however, employers must be quite cautious in evaluating the sincerity of the employee’s belief, as courts have recognized that an individual’s beliefs can change over time.
The employer should also prepare a form “job accommodation letter.” This document should be designed to memorialize the dates of the Company’s interactive process discussions with the employee requesting the accommodation and the nature and duration of the accommodation that the Company will ultimately grant the employee.
The employer should also develop follow-up correspondence regarding the status of the job accommodation. This document should confirm and remind the employee that the current accommodation offer will expire. It should be provided to the employee in advance of the expiration date to facilitate discussion of the employee’s need for further accommodation and/or the employee’s return to work.
While there is no one right way to respond to requests for accommodation, developing a uniform procedure for responding to requests, providing training on discrimination law to those involved in the process, making sure that any forms are vetted by legal counsel, and involving counsel in difficult decisions—particularly where the employer is considering denying the accommodation request—are good practices that may help assure that those decisions are fair and lawful.
Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices.