When Does a COVID-19 Vaccine Accommodation Cause an Undue Hardship?

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Employers that require workers to show proof of vaccination against the coronavirus should have robust policies and procedures in place to handle medical and religious objections. They should also know how to identify when an accommodation would cause an undue hardship on the business.

Under federal and state anti-discrimination laws, employers must explore reasonable accommodations for workers who object to receiving a COVID-19 vaccination based on medical conditions or sincerely held religious beliefs.

Employers may offer alternative accommodations or reject a job modification that would cause an undue hardship for the business. However, they should note that the "undue hardship" evaluation under the Americans with Disabilities Act (ADA), which covers disability accommodations, is different from the one under Title VII of the Civil Rights Act of 1964, which covers religious accommodations.

Many employers are used to evaluating requests under the undue-hardship standard for disability accommodations, which is much more stringent than the "de minimis" standard for religious accommodation requests, explained Joseph Kroeger, an attorney with Snell & Wilmer in Phoenix.

[SHRM members-only Q&A: How do I know if a work accommodation will create an undue hardship?]

Here's what employers need to know about when an accommodation might cause an undue hardship under these laws.

Disability Accommodations

The Equal Employment Opportunity Commission (EEOC) has periodically updated its guidance in response to workplace vaccination questions. Significantly, the agency said that the federal anti-discrimination laws it enforces don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. However, employers must consider reasonable accommodations when employees refuse to get vaccinated for medical and disability-related reasons, including pregnancy-related disabilities.

If an employer rejects an accommodation request under the ADA based on undue hardship, the decision must be based on "an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense," according to the EEOC. Employers should consider the following factors:

  • The nature and cost of the accommodation needed.
  • The facility's overall financial resources and number of employees, as well as the effect on the facility's expenses and resources.
  • The employer's overall financial resources, 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, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
  • The impact of the accommodation on the facility's operations.

If an employee cannot get vaccinated against the coronavirus for disability-related reasons, the employer should engage in an "interactive process" (a back-and-forth dialogue with the employee) to determine if a reasonable accommodation can be made.

Leslie Wallis, an attorney with Ogletree Deakins in Los Angeles, said the steps that should be taken to explore reasonable accommodations typically include obtaining information from the employee's medical provider about the employee's need for an accommodation and the expected duration of the accommodation.

Reasonable accommodations for workers who can't get vaccinated may include working remotely; a combination of weekly COVID-19 testing, masking and physical distancing; moving the employee to a private workspace; or possibly transferring the employee to a position that does not require interaction with the public or other employees.

"An employer has the discretion to choose among effective accommodations," according to the EEOC's online COVID-19 resources. "Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship."

The agency recommends that employers and employees consult the Job Accommodation Network website as a resource on different types of accommodations.

Religious Accommodations

Title VII of the Civil Rights Act requires covered employers to accommodate employees who decline to get vaccinated based on a sincerely held religious belief, practice or observance unless an accommodation would cause undue hardship for the business. 

Notably, the ADA's stringent undue-hardship standard—which considers whether the modification would cause "significant difficulty or expense"—doesn't apply to religious accommodation requests under Title VII.

Courts have found that anything more than a "de minimis"—or trivial—cost can cause undue hardship in religious accommodation cases, and the EEOC noted in its guidance that costs include the risk of spreading the coronavirus and other safety hazards.

Employers should consider objective information, the EEOC said, such as whether the employee works outdoors or indoors; works alone or in a group; or has close contact with co-workers, customers or other business partners.

Michael Puma, an attorney with Morgan Lewis in Philadelphia, noted that employers are facing an influx of religious accommodation requests.

"Employers can consider the number of requests for similar exemptions and/or the cumulative cost or burden of granting accommodations to others when evaluating whether granting a request for an accommodation will impose undue hardship," he explained. 

The most frequently considered accommodation for not getting vaccinated is wearing a mask and getting tested for COVID-19 once or twice a week, Kroeger observed. Under the EEOC's guidance, he said, it appears that employers can take the position that the cost of such testing, particularly for a large group of employees requesting religious exemptions, is more than de minimis and therefore could be properly rejected by an employer.

The EEOC noted that employers can't "rely on speculative hardships when faced with an employee's religious objection but, rather, should rely on objective information."

Raeann Burgo, an attorney with Fisher Phillips in Pittsburgh, said employers should remember to engage in the interactive process and document it, just as they would for a disability-related accommodation request. 

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Consistent Practices

Some employers have already implemented vaccination requirements for their workplaces under company policies or in accordance with federal and state mandates. Additionally, many businesses with at least 100 employees may be deciding whether to require vaccination or allow for masking and weekly COVID-19 testing under an emergency temporary standard (ETS) that the Occupational Safety and Health Administration (OSHA) published on Nov. 5.

­­­­­­Although a federal appeals court temporarily halted the ETS while it considers a legal challenge, employers should still prepare for the rule, which would require employers to establish written COVID-19 vaccination and testing policies. If the ETS survives legal challenges, unvaccinated workers will have to wear masks by Dec. 6, according to OSHA, and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.

Fisher Phillips recommended that employers prepare for the ETS as if it will take effect but hold off on implementing its measures until the final judicial outcome is certain.

"HR should start to prepare communications that it will use in relaying information to employees about its vaccine policy," Burgo said. "This includes a vaccine policy itself and a reasonable accommodation policy."  

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