Process vaccine exceptions based on religion and disability similarly

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

IN FOCUS: Handling requests from employees who are unwilling to get a COVID-19 vaccine is going to become a "hotspot" issue over the next few months, Federal Practice Group partner Debra D'Agostino warned during the LRP webinar, Federal Workplace Policies Under President Biden: What to Expect, How to Prepare.

Although D'Agostino has not heard of any agency mandating vaccines yet, that could change in the future.

COVID vaccines are still covered by emergency use authorization, so employees can refuse to receive one, but once they are fully approved by the Food and Drug Administration that also could change.

"EEOC guidance allows employers, including agencies, to mandate workers to get the vaccine, so it's going to be interesting to see how agencies handle workers who don't want to be vaccinated," she said.

Unless eligible for an exception, D'Agostino "suspects that agencies are going to be able to say that you either get vaccinated and stay employed or you leave," similar to other COVID mandates.

If agencies do begin mandating employees get vaccinated before returning to the office, "the safest course of action would be to respond to any request for reasonable accommodation, whether based on disability or religious belief, the same," D'Agostino told cyberFEDS®.

The key to reducing potential liability is to remember that a "blanket policy will not suffice" because agencies must evaluate each request on a case-by-case basis under the Rehabilitation Act and Title VII, she said. This means agencies "should make an individualized assessment, consider possible options for reasonable accommodation, and determine whether reasonable accommodation would create an undue hardship."

Religion-based requests

The process for evaluating requests for exceptions to any vaccine-related orders "isn't all that different other than that supporting documentation of a medical condition is surely easier for an employee to produce than evidence supporting that the employee has a sincerely held religious belief preventing the employee from receiving the vaccine," D'Agostino said. "However, once the agency determines the employee requesting an exception has a disability or religious belief, the interactive process to find a reasonable accommodation is the same."

Agencies also should note that they generally do not have to evaluate whether the person holds a valid religious belief before accommodating the request, she added.

Under EEOC guidance, "the definition of religion is broad, and Title VII protects beliefs, practices, and observances with which the employer may be unfamiliar," D'Agostino said. So, agencies "should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief."

However, agencies "would be justified in requesting additional supporting information" if they have "an objective basis for questioning either the religious nature or the sincerity of a particular belief," she explained.

Medical conditions

As a best practice, agencies should ensure supervisors understand how to recognize an accommodation request from an employee with a disability and "know that employees are not obligated to specifically request a reasonable accommodation," D'Agostino warned. An employee's requests for a change that could be related to a medical condition triggers the supervisor's responsibility to start the interactive process using the agency's reasonable accommodation procedures, she explained.

This means they must "know the agency's process for responding to requests, including whether supervisors make the determination or some other entity within the agency," she said. Agencies also should remind supervisors that "it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting accommodation."

When engaging in the interactive process with individuals asserting they cannot be vaccinated because of medical conditions, D'Agostino said, agencies should:

• Determine whether supporting documentation about the employee's disability is necessary.
• Evaluate submitted documentation "often with the assistance of medical professionals at or contracted by the agency."
• Consider possible options for accommodation, such as telework or reassignment, given the nature of the employee's job duties.

However, "if there are no reasonable accommodations that do not constitute an undue hardship on the agency, then the agency may consider a removal for medical inability to perform or failure to meet a job requirement," D'Agostino said.

Documentation

Whether documentation is necessary "as always" will depend on the specific case, she explained. For example, if an employee asserts he "cannot be vaccinated because of a life-threatening reaction to a prior vaccination, like a flu vaccine, then the agency would be required to obtain medical records to verify that occurrence." In addition, "if someone has a chronic condition where the connection between the vaccine and the condition aren't obvious, the agency could ask for documentation explaining why the conditions makes the vaccine unsafe," she said.

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