HEALTHCARE WORKER VACCINE MANDATE: Handling Some of the Trickier Issues

On August 5, 2021, the California Department of Public Health (CDPH) issued a new order mandating vaccination for healthcare workers. The Order allows for exemptions based on Qualifying Medical Reasons or Religious Beliefs and the process with respect to providing an appropriate reasonable medical accommodation is pretty well laid out in the Order – simplifying what can often otherwise become a rather lengthy and somewhat challenging process. This is because in the case of a vaccine mandate, we are focused on a single limitation – the employee’s inability to get vaccinated due to an underlying medical condition, and whether that limitation is temporary, permanent or of unknown duration. Essentially, the order very helpfully lays out the interactive process with respect to how to determine the need for a medical accommodation as well as what accommodations to provide.

HANDLING RELIGIOUS ACCOMMODATION REQUESTS

Handling a request for a religious accommodation to be exempted from the vaccine mandate is a much trickier matter, which is why the health order is noticeably silent on how or whether to verify religious accommodation beyond using a vaccine declination form. The Equal Employment Opportunity Commission (EEOC) defines “religion” very broadly. It’s not just about specific recognized faiths, so employers cannot simply ask for a person’s religion and perform an internet search to see if the stated belief matches the tenets or teachings of a particular religion. Rather, the definition of religion includes firmly and sincerely held moral or ethical beliefs or practices. So, an employee’s objection to being vaccinated could be based on a sincerely held moral belief against having certain chemicals introduced to the body.

Therefore, the EEOC recommends that employers should normally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief rather than requiring proof. However, according to the EEOC, “if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.” For example, someone who has a long history of stating that they believe vaccinations are harmful has shown a pattern of a sincerely held moral belief, whereas, if an employer receives a report from another employee that they were told the employee was going to claim a religious accommodation “just to get out of” the vaccine requirement, the employer might be justified in gathering more information. Due to the legal sensitivity of this issue, we suggest consulting with legal counsel before taking such action.

HANDLING EMPLOYEES WHO REFUSE TO COMPLY

Most employees requesting exemption from vaccination will likely claim either medical or religious accommodation. There could always be those who surprise you and to say they don’t fit either category, but just don’t want to be vaccinated. How to proceed will depend on the specific facts of each situation. For example, here are a few potential scenarios:

1. Employee is caught falsifying documentation (i.e., they lie on the declination form, provide a false doctor’s note, or furnish a fake vaccination card)
2. Employee drags their feet in providing (or refuses to provide) required documentation
3. Employee states they don’t qualify for an exemption, but requests remote work instead

Each set of circumstances should be approached differently. While each situation may ultimately lead to layoff or termination, terminations can be risky for employers, especially when related to an issue that has proven to be so polarizing. Thus, it will be important to make sure there is ample documentation to support the final action, as employers bear the burden of proof if required to defend their actions in a lawsuit. There are no simple answers, and the facts of each situation will be important to consider before taking any final action.

COMMUNICATING THE MANDATE TO EMPLOYEES

So, what to do about resistant employees? When communicating the new CDPH Order to employees, make it clear that while the company will consider requests for medical or religious accommodations as required by law, ultimately the company is also required to comply with all aspects of the Order. Therefore, if an employee does not comply or is found falsifying documentation to avoid the requirements of the Order their employment may be terminated. Alerting employees in advance to the potential consequences of their actions is always a good idea when implementing a new policy that may be met with resistance.

If you have any questions, please feel free to contact Holden Law Group to discuss.