Vaccine Exceptions: Approaches and Thoughts

This resource addresses federal law. Additionally state legislatures and state regulatory bodies may issue or enact laws, rules, directives, etc. that limit what your organization can do. It is imperative you have written policies reviewed and approved by legal counsel prior to implementation. Do not use this article for your regulatory compliance without consulting your attorney. None of the information we provide is intended as legal advice.

ReligiousExemption

10/25/2021

 

Just announced by the U.S. Equal Employment Opportunity Commission (EEOC):1,2

 

“Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19.”

 

This EEOC requirement is framed by this qualifying language:

  • Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
  • Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
  • Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.1

 

President Biden has issued a vaccinate or test mandate through presidential order.  He has instructed the Occupational Safety and Health Administration (OSHA) to provide and enforce the executive order.

 

As of now, the executive order is still in OSHA regulatory review, but the White House is encouraging companies to comply beforehand.

 

The order covers any companies with more than 100 employees, a nationwide total of 80 million workers.

 

It is expected that numerous lawsuits will be initiated once the regulation is released.

 

David Michaels, who ran OSHA for seven years, said OSHA doesn’t have the resources to enforce the mandate, so they will be relying on their employees “naming and shaming” companies who do not mandate their employees to get a vaccination.3

 

So, given the fact that OSHA does not have the resources to monitor and properly enforce the regulation, companies will have to decide which exemptions they wish to allow.

 

Polls show as many as 50% of un-vaccinated employees would quit if required to get a vaccine.4

 

However, in practice, resignation numbers are usually lower.  Houston Methodist Hospital (HMH) required its 25,000 workers to get a vaccine by June 7. Un-vaccinated workers dropped to 3% of the workforce.   HMH granted 285 religious or medical exemptions and 153 workers were fired, or chose to resign.5

 

This is consistent with a review done by American Senior Housing Association, which found that 44% of companies that have implemented a mandate experienced a 1% to 3% loss of staff members who declined vaccination. The review also stated 6% of respondents reported not losing any staff members as a result of a vaccine requirement.4

 

Five Star Living reported a 7% resignation level when vaccinations were mandated.6

 

So, what to do?

 

Based on the evidence today, and disregarding any company-specific compunctions about mandating vaccinations of your employees, it seems the safest track at this point is:

  • Require vaccines;
  • Expect a 2-5% drop in employment;
  • Grant exemptions to people for their religious views, requesting a brief description to fulfill your requirement to ensure beliefs are sincere;
  • Document any religious exemption requests, granted and denied;
  • Grant medical exemptions, with doctor's note;
  • Document any medical exemption requests, granted and denied;
  • Provide additional Personal Protection Equipment (PPE) for employees who are not vaccinated and require them to use it;
  • Test un-vaccinated employees regularly;
  • Provide time off for recovery from vaccination, (it’s expected to be a requirement with the pending OSHA regulations).

 

A great source for specifics on exemptions is the Senior Human Resources Managers site, which provides greater detail on putting in place a policy.7

 

Stay tuned into additional regulations and guidance by the government and local authorities.

This resource addresses federal law. Additionally state legislatures and state regulatory bodies may issue or enact laws, rules, directives, etc. that limit what your organization can do. It is imperative you have written policies reviewed and approved by legal counsel prior to implementation. Do not use this article for your regulatory compliance without consulting your attorney. None of the information we provide is intended as legal advice.

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