Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions

Editor’s note: The original version of this blog incorrectly identified Bellevue as one of the cities with a vaccine mandate. Bellevue does not have a mandate, and we have made the correction below. 

As the COVID-19 public health emergency continues, vaccine mandates have been imposed in both public and private workplaces. These mandates include federal, state, and local requirements for certain employees to become fully vaccinated or risk termination from employment. This blog discusses the process for handling and accommodating employee requests for disability-related medical and religious exemptions from vaccine requirements.

Vaccine Mandates

Here is an overview of the various vaccine mandates impacting many Washington workers.

Federal 

The federal government recently issued vaccine mandates for most federal workers, healthcare workers, and federal contractors, as well as some private and public workplaces with 100 or more employees. OSHA is expected to release rules implementing the new federal requirement, and it remains to be seen whether local governments with 100 or more employees will be subject to a federal mandate.

State

At the state level, Proclamation 21-14 (August 9, 2021) requires healthcare workers, including some local government employees, to be fully vaccinated (two weeks past final vaccination) by October 18. This order also applies to long-term care workers and most state employees. Exemptions may be made for individuals with disability-related medical reasons or sincerely held religious belief reasons but there is not an opt-out option for employees to take regular COVID tests in lieu of vaccinations.

Proclamation 21-14.1 (August 20, 2021) clarified and expanded the vaccine requirements. This order also made additional changes, such as clarifications regarding vaccination of contractors. Proclamation 21-14.2 (September 27, 2021) updated the state vaccination requirements to include on-site contractors who contract with designated state agencies. The governor has also encouraged local governments to implement similar vaccination requirements for their employees.

Local

A number of local governments have recently enacted their own vaccine mandates. Cities with vaccine mandates include Bellingham and Shoreline.

What is a Reasonable Accommodation?

A reasonable accommodation is any change in the work environment or the way a job is performed that enables a person with a need for accommodation to enjoy equal employment opportunities. Reasonable accommodations can be changes to a job position, work environment, policy, practice, or procedure. An employer may also consider supplying additional personal protective equipment (PPE), changing the location of a workspace, adding social distancing, or creating different shift assignments. Telecommuting could also be considered a reasonable accommodation in some situations, depending on an employee’s duties and the policies of their employer. 

According to EEOC guidance (section K.6):

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom to refer the request for full consideration. As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability or religious belief on an individualized basis.

Disabilities and religious beliefs are two reasons accommodations would be considered and, if applicable, provided to an employee upon request and after an interactive process between an employee and an employer, often through a human resources representative. Reasonable accommodations have been required by law since long before the current COVID-19 pandemic and resulting vaccine mandates.

The legal requirements are found in Title VII of the Civil Rights Act of 1964 (Title VII), the Rehabilitation Act of 1973 (Rehabilitation Act), the Americans with Disabilities Act (ADA), the Washington Law Against Discrimination (WLAD), and other applicable law.

What is the Process for Reviewing a Reasonable Accommodation Request?

Anyone who is eligible for a disability-related/medical or religious belief exemption may request a reasonable accommodation assessment. The reasonable accommodation assessment is a flexible interactive process with an exchange of information between an employee and their employer.

This process considers an employee’s position, the business needs of the employer, and the business needs of a covered onsite contractor (if applicable). A requested accommodation does not need to be granted if it would cause undue hardship on an employer in terms of significant difficulty or expense. This is a complex area of law, and all employers are encouraged to work closely with their attorneys to adopt compliant policies and procedures, including in relation to coronavirus vaccines and reasonable accommodations. 

Under the current vaccine mandates for workplaces, if a worker is entitled to a disability-related reasonable accommodation or a sincerely held religious belief accommodation, then the worker is exempt from the vaccine requirement and reasonable accommodations should be considered and made available by the employer if there is not an undue hardship incurred in order to provide it.

Disability/Medical exemptions

Medical conditions or disabilities that could exempt persons from COVID-19 vaccinations might include allergic reactions to vaccinations, pregnancy conditions, or certain chronic illnesses or other disabilities as determined by an employee’s health care provider. To the extent permitted by law, employers may obtain medical documentation from workers who request disability-related accommodations. According to EEOC guidance:

If it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).

Religious exemptions

Exemptions granted based on sincerely held religious beliefs, practices, or observances would allow employees to continue working without being vaccinated.

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Social, political, or economic philosophies, and mere personal preferences are not “religious” beliefs within the meaning of Title VII. However, it is not easy to distinguish a religious belief from other kinds of beliefs. In Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981) the U.S. Supreme Court stated:

The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.

Employers may inquire about the sincerity or religious nature of an employee’s beliefs in the course of evaluating a religious belief exemption request. The EEOC Compliance Manual of Religious Accommodations includes the following guidance for employers with regards to claims of religious discrimination:

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  

However, a person’s sincerely held religious belief does not need to follow the tenets of a particular religion. For example, just because a particular church has encouraged its members to receive the COVID-19 vaccines, an individual member may hold a sincerely held religious belief to the contrary. The EEOC guidance includes:

[T]he 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 an employee requests a religious accommodation, and an 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 would be justified in requesting additional supporting information.

Confidentiality of Protected Information

Employers are obligated to keep confidential the information shared by an employee or that an employee has requested a reasonable accommodation, whether it be for reasons related to disability/medical issues or religious belief.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation. The Public Records Act (PRA) also protects information that indicates an employee’s religious beliefs or affiliations (see RCW 42.56.235).

I suggest employers, their supervisors and HR representatives work closely with their attorneys regarding handling requests for exemptions and accommodations and the records management associated with these requests.

Resources from MRSC

• COVID-19 Vaccination Requirements in the Local Government Workplace

Additional Resources

• Governor Jay Inslee’s vaccine mandate FAQs and the Washington State Department of Health FAQ guidance for health care providers, workers, and settings
• Pacifica Law Group: COVID-19 Vaccination Requirement for State, Healthcare, and Educational Workers
• EEOC
  • What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Law (see Section K Vaccines)
  • EEOC Compliance Manual on Religious Accommodations