UPDATED 12/20/2021, after the Sixth Circuit lifted the stay of OSHA COVID-19 ETS.
On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit's stay that had prevented the Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard (ETS).
After our general COVID-19 vaccine article, we’d like to dive a bit deeper on what HR should know about handling COVID-19 vaccine accommodation requests.
In our previous article, we addressed whether or not an employer could mandate vaccinations for employees within the bounds of the law. And with the Biden Administration and OSHA's newest Emergency Temporary Standard, vaccinations will be required for a number of organizations.
If you're not required by the OSHA ETS to mandate vaccinations, you might still have many questions around mandating. Mandates can be polarizing - and if a large number of employees decide to refuse it, employers will have to decide between dropping the mandate or firing a percentage of their workforce.
Given that, it may be best to encourage vaccinations and help employees understand the benefits and how they create a safer workplace for everyone. Businesses can lead by example and provide incentives that encourage vaccination and make it as easy as possible, such as:
Creating a vaccination education program
Paying for the vaccine and helping employees obtain it
Providing paid time off and other incentives for employees to receive the vaccine
But if employers decide to follow through with a formal, written mandate, they should fully understand the exceptions and types of accommodations around the COVID-19 vaccination. GoCo's HR support center helps you stay up to date with 2021 vaccine related information with certified advisors to help you understand additional requirements.
What are the exceptions to vaccine mandates?
There are two main categories for exceptions: employees with religious objections, covered by the Title VII of Civil Rights Act of 1964 which prohibits discrimination of religion, and employees with disabilities protected by the Americans with Disabilities Act.
The Americans with Disabilities Act requires employers to evaluate the risk that refusing a vaccine mandate poses. If an employee who refuses vaccination "poses a direct threat to the health or safety of individuals in the workplace" then reasonable accommodations should be considered.
Similarly, unless it causes undue hardship on the business, Title VII requires employers to accommodate the sincerely held religious belief, practice, or observance of the individual.
To ensure that exceptions are being taken seriously, and determined with fairness, these should be written requests submitted by employees. GoCo's HRIS is an easy tool for organizing important documents, securely collecting and storing employee information including vaccination information.
How does an employer determine a reasonable accommodation for a religious objection or employee with disabilities?
When determining what constitutes a reasonable accommodation, employers should consider: the job functions of the employee, the possibility of alternative roles that would reduce the critical need for the vaccination, and the degree to which the employee's vaccination impacts the workplace operations.
What accommodations are reasonable for employees who have exceptions?
While this ultimately depends on your business and should be determined in partnership with the employee who is making the request, some accommodations may include:
Continuing to wear a mask even once the majority of employees are vaccinated
Eliminating some of the employee’s marginal duties in the office if possible
Offering the employee the option of telecommuting
Providing additional PPE for the employee
Revising the employee's role or responsibilities to minimize contact and exposure
Allowing the employee to work in staggered or isolated shifts
Allowing the employee to receive an alternate work assignment
Reassigning the employee to an alternative work location
Permitting an employee to use their paid time off or claim unemployment insurance if alternative work assignments aren't feasible
Maintaining health insurance benefits until the employee is eligible to return to work - even if they've exhausted their paid leave
Whether or not you create a vaccination mandate and how to handle exceptions depends on your business, however these are a few best practices. There’s no one-size-fits-all answer. But we encourage you to be sensitive to your team and their requests.
Using GoCo’s documents feature, you can transform vaccination proof documents into a reportable form to manage in GoCo by simply selecting a document, naming it, adding custom settings, and allowing employees to upload requested documents if you’d like to collect them.
And regardless of which path you choose, you can still plan to, or continue to take measures to protect employees in the physical work environment, such as:
Decreasing the number of employees at the workplace to a specific daily percentage of full capacity
Limiting in-person meetings and limiting the size of them
Requiring masks to be worn at all times
Increasing hand sanitation stations
Limiting workplace visitors
Placing regulations on elevator trip capacity and employee ride-share services
Limiting the number of common areas, including cafeterias and break rooms
Administering temperature screening
Administering symptom questionnaire
Performing screening for the presence of the virus or immunity