COVID-19 Vaccines: Step-by-Step Guide for Community Action

Disability (ADA). If an employee has a disability (defined in the ADA as “a mental or physical impairment that substantially limits one or more major life activities”) that prevents them from getting vaccinated, being tested, and/or wearing a mask, your CAA may request supporting documentation if the need for an accommodation is not obvious. There are a few options for doing this—your CAA can ask for a note from an appropriate health care professional, ask the employee to sign a limited release allowing your CAA to submit a list of specific questions to the health care professional, or discuss the nature of the employee’s disability and functional limitations with the employee. The documentation should describe the individual’s disability and why it prevents the employee from getting the COVID-19 vaccine, being tested and/or wearing a mask.

Medical Contraindication to the Vaccine (CDC). An employee may have a medical history or condition that the CDC considers to be a contraindication to the COVID-19 vaccine. The CDC’s Summary Document for Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Authorized in the United States (September 29, 2021) lists past allergic reactions to a vaccine and known diagnosed allergies to a component of a COVID-19 vaccine as contraindications. Your CAA should request medical documentation substantiating the employee’s conditions and inability to receive the COVID-19 vaccine.

Note that under both the Head Start Rule and the CMS Mandate, all documentation confirming recognized clinical contraindications to COVID-19 vaccines or medical need for delay, and which supports the request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice.

Sincerely Held Religious Belief (Title VII). If an employee says they cannot be vaccinated, be tested and/or wear a mask due to a sincerely held religious belief, your CAA should engage in the interactive process to understand the conflict between the belief and the vaccine, testing, or masking requirement. This could include asking the employee for supporting documentation. Under Title VII, a sincerely held religious belief is a “theistic or non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Neither political, social, and economic philosophies, nor personal preferences, qualify as a sincerely held religious belief.

However, the EEOC’s guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Thus, employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance, and the primary analysis will be whether the requested accommodation poses an undue hardship to the employer. However, if an employee requests a religious accommodation, and your CAA is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, your CAA would be justified in requesting additional supporting information, or denying the accommodation request.

Pregnancy (ADA or Title VII/Pregnancy Discrimination Act). The CDC recommends that all women who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future receive the COVID-19 vaccine. However, a pregnant employee may be entitled to an accommodation under the ADA or the Pregnancy Discrimination Act and Title VII. While pregnancy itself is not considered a disability under the ADA, medical conditions related to pregnancy (e.g., severe morning sickness) could rise to the level of a disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, your CAA must consider it under the usual ADA rules (see above).

Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Thus, if an employee seeks an exemption from a vaccination, testing and/or masking requirement due to pregnancy, your CAA must, under Title VII and the Pregnancy Discrimination Act, ensure that the employee is not being discriminated against, as compared to other employees who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to an accommodation to the extent that your CAA provides one to other employees who are similar in their ability or inability to work.

Under the Head Start Rule, all covered individuals granted an exemption from getting the COVID-19 vaccine must, beginning on January 31, 2022, undergo weekly COVID-19 testing, and must wear a mask beginning on November 30, 2021, including in certain outdoor settings. In other words, the testing and masking procedures outlined in the Head Start Rule serve as the minimum safety requirements that all employees who are not fully vaccinated due to a reasonable accommodation must follow.

While not directly addressed by the current federal mandates, an employee may also request an exemption from testing or masking. However, the mandates have suggested that for health and safety purposes, testing may be the only reasonable accommodation for employees who cannot get vaccinated. Nevertheless, if an employee is requesting an exemption from testing and masking, your CAA and the employee should engage in the interactive process to explore other possible reasonable accommodations, which may include:

• Permitting an unvaccinated employee to enter the physical workplace while:
  • working at a social distance from coworkers or nonemployees;
  • working a modified shift or staggering employee shifts to reduce physical contact with others;
  • making changes to the physical work environment to reduce physical contact with others; or
• Permitting employees to delay getting a COVID-19 vaccination (e.g., during pregnancy);
• Telecommuting; and
• Being reassigned to a different workspace.

The EEOC makes clear if an employer grants some accommodations, it is not required to grant all such requests. Note that employers typically must bear the cost of providing a reasonable accommodation under the ADA or Title VII. Some state equal employment laws may also require employers to pay for necessary job modifications. Thus, though neither the CMS Mandate nor the Head Start Rule requires employers to pay for weekly COVID-19 testing, CAAs may be required to pay for the testing if it is provided as an accommodation to an employee under applicable federal or state law.

Even if an employee is eligible for an exemption based on the conditions discussed above, your CAA may deny an accommodation if it poses an undue hardship to the agency. For accommodation requests under the ADA, your CAA may also deny the accommodation if it can show that it would not eliminate the direct threat that the unvaccinated, untested, and/or unmasked employee poses to the health and safety of others in the workplace.

Undue Hardship

While the “undue hardship” analysis applies when reviewing accommodation requests for a disability under the ADA as well as for a sincerely held religious belief under Title VII, what counts as “undue hardship” differs for each. For both types of requests, the EEOC directs employers to consider certain common factors in determining if allowing an employee to be unvaccinated, untested and/or unmasked poses an undue hardship, including: whether the employee works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

However, under the ADA, the standard for showing that an undue hardship exists is a higher one. The employer must show that providing the accommodation will result in “significant difficulty or expense” (29 C.F.R. §1630.2(p)). This means that an employer may bear some burden or cost to provide the accommodation. Thus, your CAA may not deny the accommodation unless the expense or difficulty of providing it is significant.

Alternatively, the standard for undue hardship for religious exemption requests is lower—the Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. The EEOC’s guidance on religious accommodations notes that employers can consider not only direct monetary costs, but also the burden on the conduct of the employer’s business–including the risk of the spread of COVID-19 to other employees or to the public. For example, courts have found undue hardship where a religious accommodation would affect workplace safety. The EEOC has explained further that an employer may revisit its undue hardship analysis such that the employer may discontinue an accommodation if it subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Direct Threat

The “direct threat” analysis applies to requests for accommodations received under the ADA and overlaps, to a certain extent, with the undue hardship analysis. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). This analysis can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated, tested, and/or masked due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s ability to safely perform the essential functions of the job. The factors that make up this assessment are: (1) the duration of the risk posed by the employee; (2) the nature and severity of the potential harm they could cause; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Under the EEOC’s guidance, the determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.

Further, in assessing direct threat, your CAA should consider the type of work environment for the specific employee requesting the accommodation, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other people; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

Your CAA must keep records documenting an employee’s request for an accommodation, medical records collected to substantiate the request, and whether the accommodation was approved or denied. Employers must maintain all information about employee disabilities and medical conditions as confidential medical records, which must be kept separately from an employee’s personnel files. The federal agency responsible for administering the applicable mandate (i.e., CMS or Head Start) will likely review records relating to accommodations requests, approvals, and denials as part of any compliance monitoring.