As you have likely heard, the Pfizer COVID-19 vaccine, now named Comirnaty, has received full FDA approval for all adults. Previously, that vaccine (like the other two options currently available in the United States) was made available only under the FDA’s authorization for emergency use. Although employers were legally able to require their employees to be vaccinated even under the emergency authorization, this shift to full approval is likely to encourage additional discussion and employer vaccine mandates.

But this begs the question about why employers would want to require their employees to be vaccinated in the first place? Answer: for safety (and for liability) purposes. The first reason employers are considering vaccine mandates is to protect the health and well-being of their employees. Employers who are dealing with COVID-19 on the full spectrum from mild illnesses, to “long COVID,” to the death of employees are searching for solutions. Employers who have dealt with this realize the cost to their businesses is more than simply a few days of missed work. An employee who suffers a catastrophic illness, weeks in the hospital, or death can have a profound impact on a workplace. A vaccine mandate is one measure employers are considering to reduce the possible effects of COVID-19.

Second, vaccine mandates look to reduce the risk of an employee potentially contracting COVID-19 in the workplace and then claiming that his employer didn’t do everything possible to protect employee safety. As with any other safety rule, one aim is to create a defense for employee claims that the employer knew of workplace risks and failed to mitigate them.

To be clear, there is nothing that requires employers to institute a vaccine mandate. That decision is left solely up to employers. But the practice is certainly becoming more common (especially as the Delta variant rises).

As we’ve told you before, employers can generally require employees to receive a COVID-19 vaccination. But employers need to provide an exemption from the vaccine requirement to comply with the law. Title VII may require employers to provide modifications for employees who raise objections to receiving employer-mandated vaccines based on their sincerely held religious beliefs. The Americans with Disabilities Act (ADA) does the same for employees who have a disability that would prevent them from getting the vaccine.

But what does this mean in the real world? What should employers do if they require vaccination and an employee says they cannot (or will not) receive one?

To start, employers should remember that an employee need not use any particular language or “magic words” when requesting an accommodation (in this case, an exemption to the vaccine requirement). Upon learning of a possible need for a reasonable accommodation for disability or religious reasons, employers should begin an interactive process with the employee to discuss the specific circumstances and what, if any, accommodation may be needed. Engaging in this process means that the employer and the employee should share information about the nature of the religious belief or disability and the limitations it imposes on receiving an employer-required vaccination. Employees who object to receiving the vaccine on another basis need not receive any accommodation from their employer.

You are likely already aware of the general need to provide accommodations for an employee who has a disability (defined by the ADA as an impairment that substantially limits a major life activity). For disability accommodations, the employee may be asked to provide appropriate documentation from his healthcare provider regarding the nature of the impairment, the duration of the need for accommodation, and the extent to which the impairment conflicts with the employer’s vaccination requirement. (In the event the employer needs to consult directly with the employee’s healthcare provider, the employee must first give permission to do so or provide a written medical release. This requirement does not apply when an employer consults directly with an employee’s religious leader.)

Requests for religious accommodations are less common, so employers may not be as familiar with what information they can request. Remember that Title VII protects only those beliefs that are religious in nature and sincerely-held by the employee. Though the definition of religion in this context is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar (including those that are new, uncommon, informal, or seem illogical or unreasonable to others)—even if those beliefs are not specifically God-based—it does not protect mere personal preferences or strictly social, political, or economic philosophies. Though an employer should normally assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief, the reality is that the need for such accommodation may not be immediately apparent in every circumstance.

If the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, it can request additional supporting information from the employee (just as it could in the case of an employee’s disability). Employers should be careful to request no more information than is necessary. What exactly that includes will vary on a case-by-case basis. In some cases, an explanation from the employee about the nature of their beliefs—including when, where, and how they follow them, and in what way the vaccine requirement conflicts with them—may be enough. In other cases, some kind of third-party verification might be necessary; this could potentially include written religious materials or written statements from others who are aware of the employee’s religious beliefs and practices (whether that be the employee’s religious leader, fellow congregant, or anyone else with whom the employee has discussed those beliefs). Employees who refuse to provide additional information when requested or otherwise do not cooperate in the interactive process may lose their right to accommodation as long as the employer’s inquiry is not excessive or unnecessary.

In either case (religious belief or disability), once the need for accommodation has been established, employers must provide a reasonable accommodation unless it would pose an undue hardship. To prove undue hardship under Title VII (religious exemption), an employer must show that the proposed accommodation would cause more than a minimal cost or burden on the operation of the employer’s business. This is a lower standard for an employer to meet than the definition of undue hardship under the ADA, which requires the employer to prove that the proposed accommodation would cause “significant difficulty or expense.”

To be sure, this is a sensitive area of law and employers should proceed with caution. Often the process takes days or weeks. And, as business or community circumstances change, what is “reasonable” may change as well. For example, an accommodation may be reasonable while employees are working remotely but more challenging once the employees return to the office.

If an employer decides to implement a mandatory vaccination program for employees and then has employees who request an exemption from that requirement based on the employee’s disability or sincerely-held religious belief, employers would be wise to contact employment counsel to work through the specifics of each circumstance.

By Rebecca D. Bullard, rbullard@dsda.com