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Handling Medical and Religious Exemptions to the COVID-19 Vaccines: Employers Need to Know the Diffe Handling Medical and Religious Exemptions to the COVID-19 Vaccines: Employers Need to Know the Diffe

Handling Medical and Religious Exemptions to the COVID-19 Vaccines: Employers Need to Know the Difference

The increase in COVID-19 Delta Variant cases across the United States caused many employers to either modify, delay or completely halt their return to work plans. These delays coupled with the anticipation of vaccine related regulations from the Occupational Safety and Health Administration (“OSHA”), have led many employers to implement mandatory vaccination policies. As a result of these polices, employers are now seeing an increase in the number of employees requesting exemptions to mandatory vaccine polices based on disabilities and/or religious beliefs.      

The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship on the employer or pose a direct threat to the health and safety of the workplace. Likewise, Title VII of the Civil Rights Act (“Title VII”) requires  employers to provide a reasonable accommodation to an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship for the employer.   

While similar, the standards applicable to the above laws do involve some important differences. Knowing those differences will be critical to avoiding liability in the lawsuits that will inevitably follow denial of some exemption requests.

Medical Exemptions Under the ADA

It is critical for employers to remember that when an employee requests an exemption to a mandatory vaccine policy due to a medical condition, the request should be considered a request for an accommodation under the ADA. Thus, the employer should treat the request like it would any other accommodation request related to a disability. This means obtaining necessary medical information related to the employee’s impairment and the existence of any risks associated with the employee receiving the vaccine. Next, employers should engage in the interactive process with the employee to determine whether a reasonable accommodation exists that would allow the employee to avoid the claimed harm of receiving the vaccine while continuing to perform their essential job functions.

Undue Hardship Analysis

While engaging in the interactive process and considering possible accommodations, employers should remain mindful that the ADA does not require an employer to acquiesce to an accommodation that causes an undue hardship or poses a direct threat. Under the ADA, undue hardship means significant difficulty or expense, and generally focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. The EEOC’s enforcement guidance explains that accommodations may cause an undue hardship if the accommodation is unduly costly, extensive, substantial, disruptive, or will fundamentally alter the nature or operation of the business. Specific factors that employers should consider when determining if an undue hardship exists include: 1) the nature and cost of the accommodation; 2) the employer’s financial resources; 3) the size of the business, including the number and location of facilities; and 4) the operation of the business, including the composition of its workforce.

Importantly, while employers should carefully analyze whether an employee’s request to be exempt from a mandatory vaccination policy creates an undue hardship, employers should avoid prematurely concluding that such a request cannot be accommodated. The EEOC’s guidance suggests various potential accommodations for unvaccinated employees entering the workplace, including the use of a face mask, working at a social distance from coworkers or non-employees, working a modified shift, undergoing periodic COVID-19 testing, the opportunity to telework, or reassignment. Employers should thoroughly consider these and other reasonable accommodations prior to concluding that an employee’s request to be exempt from a mandatory vaccination policy cannot be accommodated.

Direct Threat Analysis

In addition to the undue burden analysis described above, employers may also consider whether an employee’s inability to take the vaccine will create a direct threat to the health and safety of the workplace. A direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” [1] When evaluating whether a direct threat exists, employers must conduct an individualized assessment of the employee’s ability to perform the essential functions of the job, taking into account the duration of the risk, the nature and severity of potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

The determination that an unvaccinated employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Additionally, the assessment of direct threat should take account of:

  • the type of work environment, such as whether the employee works alone or with others or works inside or outdoors;
  • the available ventilation;
  • the frequency and duration of direct interaction the employee has with other employees and/or non-employees;
  • the number of partially or fully vaccinated individuals already in the workplace;
  • whether other employees are wearing masks or undergoing routine screening;
  • the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to the employee or others, the employer must then consider whether providing a reasonable accommodation (e.g., masks, social distancing, etc.) would reduce or eliminate that threat.

Religious Exemptions Under Title VII

Employees may also seek an exemption to an employer’s mandatory vaccination policy based on a sincerely held religious belief or practice. A request for accommodation based on this exemption typically takes the form of an employee sharing with their employer that they cannot be vaccinated because doing so would violate the tenets of their religious beliefs or practices. Federal law provides that sincerely held religious beliefs are those “moral or ethical beliefs as to what is right and wrong, and which are sincerely held with the strength of traditional religious views.” Personal or philosophical beliefs, on the other hand, do not give an individual a basis to claim a religious exemption as the U.S. Supreme Court has differentiated religious beliefs from beliefs that are “essentially political, sociological or philosophical.”

Notably, the EEOC advises that employers are not required to automatically accept the validity of a sincerely held religious belief claimed by an employee. If an employer has an objective basis for questioning the sincerity of the employee’s religion-based objection to the COVID-19 vaccine, employers may ask for additional supporting information or documentation regarding the religious nature of the employee’s objection and the sincerity of the belief. If the employee does not establish the religious nature or sincerity of their religious objection, an employer may deny the exemption request. It is important to note, however, that due to the broad definition of religion under Title VII, it can oftentimes be difficult for an employer to successfully challenge the existence or validity of an employee’s stated belief.

Importantly, Title VII requires employers to consider similar reasonable accommodations as those considered under the ADA when evaluating an employee’s request to be exempt from a mandatory vaccination policy. As noted above, those accommodations may include masking, social distancing, modified shifts, periodic testing, teleworking or reassignment.

Where a sincerely held religious belief serves as the basis for an accommodation request, Title VII requires employers to provide a reasonable accommodation unless doing so would pose an undue hardship. In contrast to the ADA, to establish that an undue hardship exists under Title VII, an employer need only prove that a requested accommodation would require the employer to incur more than a de minimis cost or burden. Even relatively slight costs or burdens may qualify as an undue hardship under the less demanding Title VII standard. To that point, courts have found the existence of undue hardship under Title VII based on issues specifically related to employee safety.


Analyzing employee accommodation requests and determining whether those requests will cause an undue burden is an important process as employers attempt to maintain the integrity of their mandatory vaccination policies while providing appropriate accommodations to employees with disabilities and sincerely held religious objections to COVID-19 vaccines.  Considering that the vast majority of COVID-19 hospitalizations and deaths are among individuals that are unvaccinated, along with the impending vaccine related regulations expected soon from OSHA, now is the time for employers to ensure their processes for analyzing requests for accommodations based on medical and/or religious exemptions to COVID-19 vaccines are in compliance with ADA and Title VII requirements.

For assistance with this or other issues related to workplace COVID-19 vaccine policies, please contact Charles Bush, Sloan Holladay-Crawford, or any member of Ice Miller’s Labor, Employment, and Immigration Group.

[1] 29 C.F.R. § 1630.2

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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