JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, SPEAKS WITH cyberFEDS ABOUT THE VACCINE MANDATE
Posted By smay || 24-Sep-2021
- 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
- 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.
- 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.
- 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."
- 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."
- 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.
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