Of the two possible grounds for an exception from the Coronavirus vaccine mandate for federal employees, the grounds for one — medical reasons — is more clearly defined than the other — religious reasons — under both new guidance and prior interpretations of the anti-discrimination laws creating the basis for those exceptions.
Under the latest guidance from the Biden administration and a model form for agencies to provide employees requesting an exception for medical reasons, a medical provider would have to sign a form stating that the individual suffers from a condition recognized by the CDC as a “contraindication” to getting vaccinated. The provider would have to detail why the vaccination “is not considered safe, indicating the specific nature of the medical condition or circumstances that contraindicate immunization with a COVID-19 vaccine or might increase the risk for a serious adverse reaction.”
That form further requires the provider to state whether the condition is only temporary and when it is projected to end. A temporary delay also is possible for a wider range of CDC-recognized reasons. After a temporary delay, an employee would have to start a course of vaccination.
Potential exceptions for religious reasons are less clear-cut. Says the model form for making that type of request, “To be eligible for a possible exception, you must first establish that your refusal to be vaccinated is based upon a sincere belief that is religious in nature. A refusal to be vaccinated does not qualify for an exception if it is based upon personal preference, concerns about the possible effects of the vaccine, or political opinions.”
While religious accommodation at work is found in the Civil Rights Act, that most commonly involves requests for changing schedules for a religious observance, exceptions to dress and grooming rules, and allowing for prayer during the workday, according to guidance from the EEOC, which enforces that law. Further, it “requires employers to accommodate only those religious beliefs that are religious and ‘sincerely held,’ and that can be accommodated without an undue hardship.”
An employer “is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation,” it says. Factors the employer may consider include “whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect.”
The model request form touches on many of those areas, for example asking employees how getting vaccinated would “substantially burden your religious exercise,” whether they refuse to use other products for religious reasons, whether they have received other vaccines as adults and if they have “why your objection is limited to particular vaccines.”
Further, the EEOC guidance says, courts have found that an employer need not make an accommodation that “diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work” or one that “conflicts with a legally mandated security requirement.”
The administration guidance cites such considerations in saying that an agency may deny a request if “the nature of the employee’s job may be such that an agency determines that no safety protocol other than vaccination is adequate. In such circumstances, the agency may deny the requested accommodation.”
Both the guidance and the forms further specify that the accommodation, if an exception is granted, would involve requiring the employee to comply with stricter safety protocols such as mask-wearing, distancing and testing that apply to unvaccinated people at a federal worksite.