Requests for workplace vaccine exemptions due to medical conditions is a huge reasonable accommodations issue
Disclaimer: This is not legal advice and is my own opinion. It in no way should be considered the opinion of my employer.
What are reasonable accommodations?
A “reasonable accommodations request” is as simple as an individual communicating the following type of request to someone in authority at their workplace through ANY channel. The request doesn’t have to be written, though in writing is easier to prove the request was made if there is a dispute later.
“I need X to do Y because Z”
Where X is the requested accommodation;
Y is the task being accommodated;
and Z is the reason related to a health condition or disability.
The word “accommodation” does not need to be included in the request. In fact, “accommodation” is a very US-centric term. Other countries use different terms, including modifications and adjustments.
Accommodations that individuals with disabilities can request usually fall into one of the following categories: software, hardware, processes, work environment, schedule, and services. A request for a COVID vaccine exemption for medical reasons when an employer has a vaccination requirement would come squarely under Processes and Work Environment. Vaccine exemption requests based on sincerely held religious beliefs come under a different analysis and a wholly separate set of laws not addressed in this article.
How are COVID vaccines implicated in workplace accommodations?
Many organizations, plus the federal government, are requiring vaccines to return to the workplace. There are some legitimate and not so legitimate medical reasons why someone might not be fully vaccinated.
- Legitimate reasons include cancer and anaphylactic reaction or blood clot caused by previous vaccines.
- Not so legitimate reasons include fear of impact on fertility and other thoroughly debunked perceived side-effects.
In this analysis, an accommodations request for a COVID-vaccine exemption might look like:
I need to be exempted from my employer’s vaccine requirements because I have/had cancer
Here is how I think these requests should be handled.
Step 1: Understand the corporate policy in detail.
Before you can assess the request itself, you need to understand what the corporate policy entails in full detail.
- Some corporate policies ban unvaccinated employees from coming to the workplace only.
- Some corporate policies ban any workplace-related activities by unvaccinated employees, including things like in-person customer calls or conference attendance outside the workplace.
- Some corporate policies contain alternatives to vaccination, such as regular testing of unvaccinated employees that can range anywhere from “every time you come on campus” to weekly. These policies may also include requiring unvaccinated employees to use separate entrances, not using common areas like break rooms and cafeterias, and staying at least six feet away from all co-workers.
What the HR representative in charge of reasonable accommodations needs to do with the employee request varies drastically based on which of these three approaches the employer has taken and what the employee is asking for.
Step 2: Make sure the request is disability-related
Having had a record of a previous disability qualifies an individual to be protected by the ADA. This covers individuals who were previously disabled by medical conditions that are now in remission. AIDS or cancer are the two most common examples, but Guillain- Barre disease might also be relevant here since that is often a severe vaccine reaction.
The need for a vaccine exemption is almost always going to be an invisible disability. It is within the employer’s rights to ask for written documentation from the employee’s medical provider that non-vaccination has been recommended.
To avoid any appearance of inconsistency:
- There should be a standard amount of information requested for all accommodations, vaccine-related or not, including diagnosis, length of time the disability is anticipated, the impact of the disability, and suggested accommodations.
- The employer should also standardize on who it will accept medical documentation from. For example, will a company accept medical documentation from a chiropractor for things that are not skeletal or nervous system-based? How about osteopaths, nurse practitioners, optometrists, psychologists, audiologists, or Christian Science practitioners? Again these things should be decided for ALL accommodations, not specifically for COVID-related issues.
Step 3: Understand what the employee is asking for
Are they asking to:
- Come in the office without being vaccinated?
- Be exempt from air travel and conferences that are normally part of their job because of their inability to be vaccinated?
- Have you offered a testing alternative to unvaccinated employees?
Under reasonable accommodations:
- The employer IS NOT required to give the employee exactly what they are asking for.
- The employer MUST engage in an interactive discussion with the employee to resolve the barrier implicated by the corporate rule conflicting with the employee’s disability.
Step 4: DON’T TALK ABOUT IT !!!
There are precise rules about protecting the private health details of employees that have requested accommodations. You cannot tell co-workers, “Oh, you have to stay six feet away from Susan. She isn’t vaccinated.” That will get you in a whole lot of hot water with the EEOC.
Step 5: Understand the implications.
If the employer decides to allow unvaccinated employees to come on campus through accommodations, they might receive other accommodations requests from immunocompromised employees to work from home to limit their exposure to unvaccinated individuals.
Also, once a decision has been made, it sets precedence for other individuals making the same request. Inconsistency is not your friend.
What can a safety-minded employer do?
- Be consistent. Treat all medically-related COVID accommodations requests the same and optimally treat them the same as any other process/workplace accommodations request.
- Be flexible. Offer testing and WFH options.
- Communicate. The EEOC abhors silence.
- Have a plan. Because the only thing worse than having an incomplete plan is having no plan at all.