The US Occupational Safety and Health Administration (OSHA) is working on emergency rules requiring companies employing more than 100 people to mandate the COVID-19 vaccine. Employers large and small have been wrestling with whether to require vaccination. If an employer with 15 or more employees mandates the vaccine, the company must be prepared to deal with worker requests for accommodation based on a medical disability or on a sincerely held religious belief. This column focuses on the medical exemption only.
First, note that very small employers (less than 15) are not covered by the federal Americans with Disabilities Act (ADA), nor does any North Carolina law impose a similar obligation. That means these NC employers are not legally required to accommodate disability requests, period. Some very small employers choose to use the ADA process as a model because it presents a fair approach, which is good for morale.
The ADA requires reasonable accommodation for employees with a disability, unless the employer can show it creates an undue hardship. Employees do not have to use the phrase “reasonable accommodation.”
The ADA directs a good faith interactive process to determine if there is a disability-related need for reasonable accommodation. The employer seeks information from the employee’s health care provider with the employee’s consent, explaining why an accommodation is needed, and whether the need is temporary or permanent. It is NOT sufficient for a medical provider to write a note simply saying that a worker should be excused from the mandatory vaccination requirement. To be meaningful, the medical documentation needs to say how the disability is affected by getting the COVID vaccination, and whether this issue is temporary or permanent.
If it appears there is a disability-related reason to decline vaccination, then consider whether a reasonable accommodation can be made. A reasonable accommodation is one that can be made without undue hardship (meaning a significant difficulty or expense). What is reasonable depends on many factors, including (1) how severe is the rate of infection in the community, (2) how often the employee would interact with co-workers, and whether social distancing is possible, (3) how often the employee would interact with customers or others of unknown vaccination status, (4) how likely the employee will be interacting with persons who are unable to be vaccinated or are higher risk (e.g., younger children, immuno-compromised persons), (5) quality and availability of ventilation in the workplace, (6) whether co-workers and customers are required to wear masks, and (7) how practical it is to require the employee to have periodic COVID tests instead of having the vaccine. Two good online resources about accommodation requests are the Job Accommodation Network (JAN) website at https://askjan.org/topics/COVID-19.cfm and applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources.
If it is not reasonable for the unvaccinated employee to work at their usual place and time, the employer should consider whether it is reasonable for the employee to work a different shift, work in a different location, be reassigned to another position, or telework. The larger the employer and the physical facilities, the easier it usually is to find reasonable accommodation, but it is a case-by-case analysis. The employer must be careful not to retaliate against the employee who seeks accommodation. The employer must also keep confidential that the employee has requested an accommodation (although it is not the employer’s fault if co-workers can figure it out or if the employee discloses it). If undue hardship means that no accommodation is available, an employer can lawfully terminate the worker’s employment if they refuse the vaccine.
On the flip side, employers may see requests for reasonable accommodation by vaccinated employees who, despite vaccination, are temporarily or permanently medically at higher risk of contracting COVID or having severe cases. This may include organ transplant patients, persons in certain cancer treatments, and persons with a weakened immune system. Employers should go through the same interactive process and, if a disability-related basis exists, they should go through the same analysis of reasonable accommodation.
Employees should avoid the social media advice to deal with an employer’s vaccine requirement like this: “Just quit and collect unemployment.” In North Carolina, resigning usually nixes a claim for unemployment compensation. If an employee is fired over vaccination and the employer says no reasonable accommodation is available, approval of the unemployment claim is not automatic. Reasonableness of the employee and the company will be examined in the unemployment claim.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough. She can be reached at (919) 732-7300 or firstname.lastname@example.org.