Federal courts have temporarily blocked the Biden administration’s three different rulemaking actions on COVID-19 vaccine requirements affecting private employers, prompting a growing number of businesses to fill the void with their own vaccination policies to protect workers and customers.
During Wednesday’s virtual meeting of NJBIA’s Human Resources Council, Fox Rothchild labor employment attorney Brian McGinnis shared best practices for COVID-19 workplace vaccination policies and how employers should handle requests for a “reasonable accommodation” from unvaccinated employees who say they cannot get the shot for medical or religious reasons.
“You want to set clear definitions, clear dates of compliance, and clear expectations” in any written COVID-19 policy, McGinnis said. “You also want to make sure your COVID-19 vaccination policy expressly outlines a form of accommodation process. Something as simple as stating the employer will comply with the requirement under applicable law to provide a reasonable accommodation to this policy.”
The policy should require the employee to report his or her vaccination status directly to Human Resources, not their supervisor, to protect the businesses from discrimination lawsuits later, he said. The supervisor should only be looped in about the employee’s vaccination status if Human Resources decides to grant the employee a reasonable accommodation related to the vaccine requirement.
Various state and federal laws require employers to make reasonable accommodation for employees who have a disability, are pregnant or have a sincere religious belief that prevents them from being vaccinated. A disability accommodation request, for example, could arise in the context of an employee who is immunocompromised from cancer treatments.
The accommodation might be to require the unvaccinated employee to wear a mask and be tested weekly in the workplace. Remote work might be another reasonable accommodation, but only if the employee’s essential job functions do not require direct interactions with co-workers, clients or customers.
“You are not required to grant an accommodation that would remove a job’s essential functions,” McGinnis said. “The goal of accommodation is to allow people to continue to do these essential functions in a different way that accommodates them.”
McGinnis emphasized that a request for reasonable accommodation made by an employee on religious grounds cannot be based on political beliefs.
“Purely secular political beliefs do not qualify for religious accommodations,” McGuiness said. “Someone who is saying, ‘I have a religious belief that the United States Constitution grants me the right to not be vaccinated in my workplace’ – well, again, political opinion is not a valid basis for an accommodation on a religious belief basis.”
To watch McGinnis’ entire presentation, “Shots Fired: The Law and Employer Best Practices on COVID-19 Vaccinations,” go here.