Seventy to 90% of a population must be vaccinated to reach “herd immunity” from a contagious viral disease.
But not everyone wants the shot in the arm.
Now that COVID-19 vaccines are readily available, employers must wrestle with how, when and if they should mandate employees be vaccinated against the coronavirus, and whether or not to grant exceptions based on religious beliefs.
Reaching herd immunity is driving a federal mass vaccination campaign unseen since 1950s polio outbreaks and Swine Flu vaccination initiatives in the 1970s. The goal is to contain the coronavirus that is estimated to have sickened about 33 million Americans and killed roughly 600,000.
“Vaccine exemptions are nothing new,” said Edward J. Easterly, a partner at Hoffman Hlavac & Easterly, a labor and employment law firm in South Whitehall Township, Pennsylvania.
The firm is guiding clients through the process of employee vaccination exemptions and how to structure company policies.
Vaccination exemptions generally fall into two categories: medical exception requests, in which a person is allergic to a vaccine or one of its components, and religious exemption requests.
To qualify for an exemption on religious grounds an employee must have a “sincerely held religious practice, belief or observance” in which providing supporting documentation may not be necessary or appropriate.
Wholesale changes in how we work and interact with one another since the pandemic may have an impact on how employees seek – and obtain – a medical or religious COVID-19 vaccination exemption.
Accommodations for those with a valid vaccination exemption could range from continued remote working, limited in-person work attendance or a hybrid workweek with mask wearing requirements, additional work space sanitation and social distancing.
“Masking and social distancing is much easier because the CDC [Centers for Disease Control and Prevention] has issued guidance,” said Stephanie Kobal, a shareholder at Fitzpatrick Lenz & Bubba P.C. in Allentown. “Employers can require those who have not been vaccinated to follow CDC and PA Department of Health guidance” as directed.
But could a remote work set-up become an unintended consequence for those who prefer to no longer report to the workplace?
Easterly said medical exemptions must be requested in writing and supporting documentation is typically required from an attending physician or health care professional.
The onus for a religious vaccination exemption request lies with the employee.
“For religious requests it begins with a conversation…because an employer can’t initially ask for documentation” proving the request, Easterly said.
“Generally with the religious accommodation it’s a very gray area, and for religious accommodation the burden of proof is fairly low,” Kobal said.
Some employees might not neatly fall into a category, but maintain a strong conviction not to take the vaccine, nonetheless.
A company could seek supporting documentation for religious exemption requests, if the employer had a legitimate question about the request, or a valid reason to doubt it, Easterly said. “It’s not meant to be a huge hurdle,” he said.
Private companies retain the ability to terminate an employee for not complying with valid company policies or procedures. On June 12, a federal court in Texas dismissed as “baseless” a lawsuit brought by 117 Houston Methodist Hospital employees, who challenged their employers COVID-19 vaccination mandate. The facility recently suspended 178 employees who refused vaccination, NBC News website reported.
Employers must provide advance notice when making or changing universal employment policies, including implementing vaccination mandates, Easterly said.
The religious exemption request was protected under Title VII of the Civil Rights Act of 1964, according to the U.S. Equal Employment Opportunity Commission.
Companies may opt for a third-party evaluation when determining whether or not to grant a religious vaccination exemption, said retired Judge Stephen Linebaugh, a former York County Court of Common Pleas president judge and chair of Barley Snyder law firm’s alternative dispute resolution service team in York.
In his role as an independent, third-party vaccine exemptions evaluator, Linebaugh reviews and makes a written recommendation to the employer about whether or not to grant the request. So far, Linebaugh isn’t seeing many religious exemption requests in the Harrisburg, York, Lancaster and suburban Philadelphia region. He has worked with about 24 employers, mainly in the Harrisburg area and Philadelphia’s Main Line.
Invoking a religious belief or creed is not limited to mainstream religious organizations.
“It is a case-by-case analysis, and [employers] can’t make any assumptions about practice or belief,” Linebaugh said. “You have to go into the conversation with an open mind and truly a third-party.” The employment policy has to apply equally to everyone, and it cannot be discriminatory. “It must be all or nothing.”
“Employers struggle with this,” he said. “I think they agonize over making the decision to require people to be vaccinated, or when someone says they don’t want to do it.”
Jehovah’s Witnesses, for example, are known to refuse blood transfusions. Christian Science practitioners abstain from many medical treatments and interventions. Mennonite and Amish communities generally rely on traditional medicines and practices, and some communities were able to opt out of the Affordable Care Act, adopted in 2010, because of a law adopted in 1965.
The 1965 law describes relief for some Amish and Old-order Mennonite communities from paying into Social Security, Medicaid and other government benefits.
A lot of employers are encouraging vaccination rather than delivering vaccine mandates Kobal said. “That negates this issue for a lot of our employers. It allows flexibility for those who may not fall into the legal definition, but do have strong beliefs.”
She said there are inherent legal risks and additional burdens to applying mandates.
“I think employers are best served by having a flexible conversation,” Kobal said.