Best Practices in Creating and Enacting Return-To-Work Policies for the Company

COVID-19 has resulted in a multitude of questions about employment law and how businesses can navigate the pandemic in a safe and legal way. 

In general, this overview on best practices will be high-level but these issues tend to be very state-specific, so a good starting point is going to be any state or local laws and/or mandates and then checking the Equal Employment Opportunity Commission (EEOC) for further guidance. This blog post may not be updated, and this is a constantly evolving area, so it’s best to look for the most current information or reach out to a lawyer for help.

Creating a Vaccination Policy

As of today, April 20th, 2022, the federal vaccine mandates for government contractors are blocked by the courts. However, states might have their own mandate or other guidelines. Private employers CAN also have their own vaccination policy – even if they are not subject to a federal or state mandate. 

The Equal Employment Opportunity Commission (EEOC) Guidance on vaccine policies centers around two major rules.

No violation of existing anti-discrimination laws

The first is to make sure that the vaccine policy does not violate any federal anti-discrimination laws (i.e., Title VII of the Civil Rights Act and the Americans with Disabilities Act).

This means that the vaccine policy cannot have a disparate impact on employees or treats certain employees differently based on their protected characteristics (race, sex, religion are big ones – also consider gender identity, sexual orientation, etc.) However, treating employees differently based on work location, job duties, or other non-discriminatory, legitimate business reasons may be acceptable.

Providing reasonable accommodation

The second major rule is to make sure to provide reasonable accommodation for those who cannot be vaccinated for disability, medical, or religious reasons.

An accommodation is considered reasonable if it will not cause the employer undue hardship and it is not unduly coercive for an employee. Typically, a choice between receiving a vaccine or being fired is probably not going to be coercion (especially if the employee is an at-will employee).

For a disability or medical accommodation, the question is whether the person has a physical or mental impairment that substantially limits their ability to perform a major life activity (and would prevent them from receiving the vaccine at the time). For example, if the person had a severe allergic reaction to the first dose of the vaccine or is undergoing medical treatment that prevents them from receiving the vaccine.

In general, the employer is entitled to ask for a doctors’ note for a disability request. The best practice here is to adopt a uniform policy and ask everyone seeking a disability exemption for a doctors’ note since deciding whether someone’s disability is valid should not rely on visible cues and this inquiry is extremely sensitive.

A note on religious accommodation

For a religious accommodation, the belief must be sincerely held. This is a very tricky determination. Generally, if there is an objective reason to doubt the sincerity of the belief, then follow-up questions are probably warranted. 

Religion is broadly defined as well – it does not need to be a commonly or traditionally practiced religion to qualify for accommodation. The employer may look at how long the employee has practiced the religion, whether the employee consistently observes religious holidays or practices, and whether or not the employee has altered other medical treatment based on the religion in the past. 

An objective reason to doubt the sincerity of the belief might arise when an employee has a history of observing the religious holidays and practices for Religion A, but suddenly provides Religion B as a reason they are not able to receive a COVID vaccine.

EEOC guidance states that religion does not include beliefs that are purely social, political, personal preferences, or non-religious concerns about possible vaccine side effects. (For example, “politician X told me ____” is not a valid reason for a religious exemption).

Handling accommodation requests can be highly fact-intensive and sensitive for the employees, especially as it relates to disability and medical information. It is important to have HR professionals work with counsel to handle these requests.

The guiding star for creating any vaccination policy should start with whether there are applicable federal, state, or local laws or mandates. If so – use those as a starting point. Other helpful questions to consider include whether the workforce is mostly remote or mostly in person, whether social distancing is possible in the office, the time and resources required to handle accommodation requests, and whether or not proof of vaccination should be required.

For those seeking more information, please visit the following national resources:

Laura Yanka

Laura's practice focuses on independent developers and startups. She endeavors to make every client feel welcome, important, heard, and respected.

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