WHEN IS IT AN UNDUE HARDSHIP FOR AN EMPLOYER TRYING TO WORK THROUGH A COVID-19 VACCINE ACCOMMODATION REQUEST?
WHEN IS IT AN UNDUE HARDSHIP FOR AN EMPLOYER TRYING TO WORK THROUGH A COVID-19 VACCINE ACCOMMODATION REQUEST?
Employers face medical and sincerely held religious belief objections to COVID-19 vaccinations and anti-discrimination laws (e.g., Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”)) require employers to make reasonable accommodations for workers who object to the vaccine. Employers may offer alternative accommodations or reject a job modification proposal from the employee if the proposal would cause an undue hardship for the business. Undue hardship for the employer evaluation under the ADA and Title VII require different analysis. The undue-hardship standard for ADA is much more stringent than the “de minimis” standard for religious accommodation requests. Some concerns are covered by both the ADA and Title VII, like pregnancy, childbirth, and related medical conditions.
The Equal Employment Opportunity Commission (“EEOC”) said that employers are not prohibited from requiring anyone who enters the workplace be vaccinated, but employers must consider reasonable accommodations when employees refuse to get vaccinated for medical and disability-related reasons. If a reasonable accommodation can be made without creating an undue hardship for the business or a threat to the employee’s safety or the safety of co-workers, customers and other business partners, the employer would be wise to make that accommodation(s). Steps to take may be to obtain information about the employee’s need for an accommodation and the expected duration required.
Then the employer would make an individualized assessment of current circumstances to determine whether a requested accommodation would cause significant difficulty or expense (for instance, we recently had an employer refuse a request for accommodation to work from home due to the employee’s failure to provide quality work, engage with team members, etc.). Analysis of these points should be made:
- •The nature and cost of the accommodation needed.
- •The employer’s overall financial resources and number of employees, as well as the effect on the employer’s expenses and resources.
- •The employer’s size, employee headcount, and type and location of facilities (if the facility that is evaluating the request is part of a larger entity).
- •The employer’s type of operations, including the structure and functions of the workforce, how the workforce interacts, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation.
- •The impact of the accommodation on the employer’s operations.
The accommodation process is meant to be “interactive” in order to make an accommodation reasonable for both the employee and the employer. Typical vaccine accommodations include allowing the employee to work from home and if not, requiring weekly testing, masking, and physical distancing. Some employers move the employee to a remote location or a secluded work area. In extreme circumstances, employers may change the employee’s job to one that is more easily accommodated or offer the employee a leave of absence. The EEOC notes that the employer has discretion to choose among effective accommodations and if a requested accommodation would result in undue hardship, the employer can offer an alternative accommodation.
In any case, it should be a process back and forth. Here is a sample Accommodation Denial Form from the “Job Accommodation Network”[1]:
Here at Epps & Coulson, LLP we understand that these quickly moving vaccine issues may be confusing. We are available to advise. Feel free to contact Dawn: dcoulson@eppscoulson.com
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is considered advertising under laws of some states. Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.
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