JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, SPEAKS WITH cyberFEDS ABOUT THE VACCINE MANDATE

Posted By smay || 24-Sep-2021

whistleblower Key points:
  • Threshold for showing eligibility for exception is higher than people think
  • Agencies can ask for more documentation if they suspect request is not legitimate
  • Public safety will likely outweigh an employee's personal religious belief against vaccination
5 key considerations for medical/religious exceptions from the vaccine mandate By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau IN FOCUS: Getting an exception from the COVID-19 vaccine may be more challenging than employees  think, according to two legal experts. In determining whether employees qualify for a limited exception for legitimate medical conditions or religious beliefs, the Safer Federal Workforce guidance directs agencies to consider the basis for the claim (religious or medical), the nature of job responsibilities, and the "reasonably foreseeable effects on operations, including protecting employees and the public from COVID-19," Federal Practice Group partner Joanna Friedman told cyberFEDS®. So, when analyzing whether to grant a reasonable accommodation for medical or religious reasons, agencies are allowed to consider the impact of granting the accommodation on the safety of the workforce, she said. "The threshold that a federal employee is going to have to reach to be granted religious or medical accommodation is likely much higher than they realize, and because of that the reality is that the vast majority of accommodation requests are going to be denied," she noted. So, "employees need to understand that disciplinary action is going to be a reality" if they refuse get vaccinated, and "there is not going to be an easy fix because of the avenues employees would have to pursue." George Chuzi, a partner at Kalijarvi, Chuzi, Newman & Fitch, P.C., said that while medical requests will need to be analyzed on case-by-case basis, "it's kind of hard to see how someone will win on a claim of religious belief." According to Friedman and Chuzi, agencies should consider the following when analyzing exception requests:
  1. Procedures for submitting exception requests. The guidance does not specifically state how agencies should process claims for a reasonable accommodation to be excused from the vaccine mandate due to a medical condition, Friedman said.
Agencies could set up a separate process for accepting accommodation requests related to the vaccine or use their existing reasonable accommodation procedures, which typically direct employees to submit requests to their disability program coordinator or their first-line supervisor, she added.
  1. Medical conditions preventing vaccination. Once a request based on a medical condition is received, agencies must engage in the interactive process to determine whether the medical condition prevents the individual from being vaccinated safely, she added. While the initial thinking was that vaccinations could compromise the health of individuals with certain underlying medical conditions, now the general consensus is that the likelihood of getting severely sick from COVID for those with underlying conditions outweigh any health risk posed by the vaccine, she explained.
Friedman anticipates that doctors will only support an exception in "extremely rare circumstances" with "a very low chance" of a "doctor writing on their letterhead that the employee should not be vaccinated due to asthma," for example. However, Chuzi pointed out that the Centers for Disease Control "does not yet have a complete detailed description of what will be necessary to get the medical exception because there are varieties and differences in the immuno-compromised conditions which preclude giving a one-size-fits-all answer." So, "if employees can show the vaccine would jeopardize their lives, employers will likely not require the vaccine." In this case, "agencies will have to find some kind of reasonable accommodation, such as telework or masks, on a case-by-case basis."
  1. Submitting documentation and suspicious requests. To verify eligibility for a medical exception, Friedman said, agencies can ask employees to submit medical documentation "showing they have a physical medical condition that significantly limits major life activity and can perform essential functions of job with or without accommodation." So, employees claiming they can't be vaccinated due to asthma would have to get a medical professional to support that claim in writing, verify the condition, and specify how not getting vaccinated would accommodate the medical condition, she added. This means that employees submitting suspicious medical documentation -- such as a chiropractor signing off on a vaccine exception request -- "is not going to work" because "agencies are allowed to go back to the employee and say that this is insufficient."
As the next step, Friedman said, agencies typically provide 15 to 30 days to submit additional documentation, but if the employee does not provide documentation that shows they have a medical condition that prevents safe vaccination, they can deny the reasonable accommodation request and require vaccination. Considering the tight timeline requiring employees to submit proof no later than Nov. 22, Friedman said she suspects agencies will be "on" employees to avoid prolonging the process. If the process needs to go beyond the deadline, most likely, agencies will put employees who submitted insufficient medical documentation "into a holding pattern" until they complete the reasonable accommodation process with a decision either granting or denying the request, she said.
  1. Analysis of undue burden. Although undue burden usually comes down to logistics or costs, for the vaccination mandate the agency's "argument is going to be that you will put everyone at risk to get sick," Friedman added. For religious-based exception requests, under Title VII, an employer must reasonably accommodate an employee's sincerely held religious belief, observation, or practice, Friedman said. However, a "political belief or social philosophy is not a religious belief -- that's where litigation is going to come in."
According to Equal Employment Opportunity Commission guidance , agencies can deny religious accommodation requests if they doubt the sincerity of the employee's belief or if granting the accommodation would pose an undue burden, she explained. But even if the employee's belief is sincere, three of the EEOC's factors for evaluating undue burden require considering whether the accommodation would infringe on other employees' rights, compromise workplace safety, or conflict with other laws or regulations, she added. Arguably, exempting employees from the vaccine mandate would at least compromise workplace safety if they must be in the office, she said. So, "while people want to believe these exemptions are possible, the likelihood of overcoming this undue burden analysis is not very high." Chuzi toldcyberFEDS® that the religious exception must be balanced against the perceived impact on other employees, such as risking others' health and safety. In addition, claims that getting vaccinated would violate one's religion are unlikely to be successful because most organized religion leaders have released statements supporting vaccination, except for some sects whose leaders are still against any vaccination, he added. "If public safety is going to be the balancing factor, I don't see how anyone can raise a personal religious belief to avoid vaccination if they have some kind of job that requires working with other people directly."
  1. Denying requests. If the agency denies an exception request, employees can file a reasonable accommodation claim, Friedman said, but such complaints can take anywhere from one to three years to resolve. Employees who are removed can take the mixed case to the Merit Systems Protection Board but until a full board is approved, appeals must go to the Federal Circuit or get put on the waiting list, she added.
In terms of denying religious exception requests, Chuzi said, "the battleground is going to be on individual religious belief" against the COVID-19 vaccination. Resources on cyberFEDS®:
  • Coronavirus Roundup · 5 things to know about asking contractors about their vaccine status (09/17/21) · Quick Start Guide: Reasonable Accommodation -- Religion · Quick Start Guide: Religious Discrimination · Checklist Plus+: Religious Beliefs -- Accommodating Employees
Also, see the 2021 Federal Personnel Guide in our online store. September 23, 2021 Copyright 2021© LRP Publications © LRP Publications. All Rights Reserved.
Categories: Federal Employment Law, Firm News