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Vaccination Accommodations and Undue Hardships

Covered employers who are working on plans to implement the Occupational Safety and Health Administrations (OSHAs) emergency temporary standard (ETS), or those employers who may not be subject to the ETS and who have adopted their own COVID-19 vaccine mandates should have policies and procedures in place to handle medical and religious objections from their employees. Under federal and some state anti-discrimination laws, employers must explore reasonable accommodations for their employees who object to receiving the vaccination based upon either a medical condition, or a sincerely held religious belief.  Employers may offer alternative accommodations, or reject a job modification that would cause an “undue hardship” for their business, but they should also note that the “undue hardship” evaluation is different in each situation.  Employers should recognize that the “undue hardship” requirement is much more stringent for a disability accommodation under the American with Disabilities Act and Its Amendments Act (ADAAA), compared to the “undue hardship” requirement for sincerely held religious beliefs under Title VII of the Civil Rights Act.

The Americans with Disabilities Act (ADA) became effective on January 1, 1991. While the ADA itself does not list all impairments that are covered, it prohibits discrimination against people with disabilities in employment, transportation, communications, public accommodations, and participating in government programs and services. The ADA provides a three-prong definition of disability as 1. a physical or mental impairment that substantially limits one or more major life activities; 2.  has a record of such an impairment; or 3. is an individual who is considered as having such an impairment.  The ADA was amended in 2008 and the new Americans with Disabilities Act and Its Amendments Act (ADAAA) made substantial changes to clarify the definition of “disability”, thus overturning Supreme Court decisions that interpreted the original ADA in a way that made it difficult to prove that an impairment is a disability. The ADAAA expanded the definition by altering key terms in the definition and adding clarification and modifications.

There are multiple federal agencies that have responsibility to enforce the ADAAA. The Civil Rights Center (CRC) and the Office of Federal Contract Compliance Programs (OFCCP) have enforcement duties for employment-related provisions of the ADAAA, in regards to government contractors, state and local governments, and other public entities. Other agencies that provide enforcement for the ADAAA include:

  • Equal Employment Opportunity Commission (EEOC) – The EEOC prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in areas such as job assignments, position descriptions, and training. 
  • U.S. Department of Transportation (DOT) – The DOT ensures that those who receive federal aid and state and local governments responsible for roadways and pedestrian facilities do not discriminate on the basis of disability in highway transportation programs or activities.
  • Federal Communications Commission (FCC) – The FCC requires telephone, television, and internet companies to provide access for people with hearing and speech disabilities.
  • U.S. Department of Justice (DOJ) – The DOJ enforces state and local governmental services and public accommodations.
  • U.S. Department of Health and Human Services (HHS) – The HHS ensures that those with a hearing disability have access to sign language interpreters and other auxiliary aids in hospitals and clinics.
  • Architectural and Transportation Barriers Compliance Board (ATBCB) – The ATBCB issues guidelines to ensure that buildings and transit vehicles are accessible to people with disabilities.
  • U.S. Department of Education – This agency enforces the prohibitions in discrimination in programs or activities that receive federal financial assistance.

The EEOC, who is one of the agencies responsible for enforcing federal laws that make it illegal for employers to discriminate against a job applicant, or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information, has periodically updated its guidance in response to workplace vaccination questions. (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) The agency has also stated that the federal anti-discrimination laws it enforces do not prohibit employers from requiring employees who physically enter the workplace to be vaccinated for COVID-19. However, the agency has also stated that employers must consider reasonable accommodations when employees refuse to get vaccinated for medical and disability-related reasons, including pregnancy-related disabilities. The EEOC encourages employers to conduct a comprehensive and documented “interactive” process (a back-and-forth dialogue) with the employee to see if they are able to reasonably accommodate the employee’s request for an accommodation in the workplace without creating an “undue hardship” on the business. During this process steps should be taken to explore reasonable accommodations that typically include obtaining information from the employee’s medical provider about the employee’s need for an accommodation in the workplace and the expected duration of such accommodation. Employers have the discretion to choose among effective accommodations according to the EEOC. However, when a requested accommodation would result in “undue hardship” for the employer, the employer must offer an alternative accommodation, if one is available absent “undue hardship”.  The agency recommends that employers and employees consult the Job Accommodation Network (https://askjan.org) as a resource for differing types of accommodations.

Furthermore, if the employer rejects an accommodation request under the ADAAA that is based on an “undue hardship”, the decision must be based on “an individualized assessment” of current circumstances that show that a specific reasonable accommodation would cause a significant difficulty, or expense for the organization.  According to the EEOC, employers should consider the following factors when making a decision:

  • The nature and cost of the accommodation needed.
  • The facility’s overall financial resources and number of employees, as well as the effect on the facility’s expenses and resources.
  • The employer’s overall financial resources, size, employee headcount, and type and location of facilities (if the facility that is evaluating the request is part of a larger entity).
  • The employer’s type of operations, including the structure and functions of the workforce, as well as the geographic separateness and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer.
  • The impact of the accommodation on the facility’s operations.

Title VII of the Civil Rights Act requires covered employers to accommodate employees who decline to get vaccinated based on a sincerely held religious belief, practice or observance unless an accommodation would cause “undue hardship” for the business.

Employers who are considered to be covered by the EEOC, thus Title VII of the Civil Rights Act include:

  • Business/Private Employers – General coverage is defined as those employers who employ 15 or more employees who have worked for their organization for at least 20 calendar weeks in this year or last.
  • Age Discrimination – Coverage is defined as those employers who employ 20 or more employees who worked for the organization for at least 20 calendar weeks in this year or last.
  • Equal Pay Act – All employers are covered regardless of the number of employees or length of employment.
  • State and Local Governments – General coverage is defined as those employers who employ 15 or more employees who have worked for the agency for at least 20 calendar weeks in this year or last.
  • Age Discrimination – The state or local government agency is covered no matter how many employees that they employ.
  • Equal Pay Act – Almost all state or local government agencies are covered no matter how many employees that they employ.
  • Federal Government Agencies – All federal government agencies are covered no matter how many employees that they employ.
  • Employment Agencies – An employment agency, e.g., temporary staffing agency, or a recruiting company, is covered no matter how many employees that they employ, if the agency regularly refers employees to employers, even if they do not receive payment for their services.
  • Labor Unions and Joint Apprenticeships – Applies to all labor organizations that operate a hiring hall or have at least 15 members.

While the ADAAA’s “undue hardship” standard, which considers whether the accommodation would cause a significant cause or expense to the business, courts have found that anything more than a “de minimis”, or trivial cost, may cause an “undue hardship” in a religious accommodation. The EEOC has noted in its guidance that costs include the risk of spreading the coronavirus and other safety hazards. The EEOC also noted that covered employers should consider objective information such as whether the employee works outdoors or indoors, works alone or in a group, or has close contact with coworkers, customers, or other business partners, in their decision-making process. It is also noted that covered employers may consider the number of religious accommodation requests for similar exemptions and/or the cumulative cost or burden of granting religious accommodations to others when evaluating whether granting a request for an accommodation will impose and “undue hardship”.  Most employers recognize the most obvious accommodations for not getting vaccinated are wearing a mask and getting tested weekly for COVID-19. Under the EEOC’s guidance, it appears that employers may take the position that the cost of such testing, particularly for a large group of employees requesting a religious accommodation or exemption, is more than trivial and therefore could be properly rejected by an employer.

While a federal court has temporarily halted OSHAs ETS, employers should continue to prepare for the rule, which requires covered employers to establish written COVID-19 vaccination and testing policies.  Those policies should include reasonable accommodation guidelines for both medical and religious objections from their employees.

For additional information on medical and religious accommodations and “undue hardships”, employers are encouraged to contact a Consultant at New Focus HR, LLC at www.newfocurhr.com.

Written by: Kristen Deutsch, M.B.A., CCP






New Focus HR is a human resources consulting and training company that services all organizations. Our expert team collaborates with businesses to attract, motivate, retrain and retain their biggest assets, employees. While engaged with an organization, our focus is to find solutions that improve the company’s internal HR-related practices while increasing results at the same time! Our focus. Your results.