An HR Professional’s Guide: COVID-19 Vaccine Exemptions

After the latest OSHA news, many HR professionals are still left scratching their heads as they attempt to manage exemptions from the COVID-19 vaccine. Some of these professionals are still required by their local jurisdiction to have such a policy, while others may work for organizations that have voluntarily adopted such a requirement for their employees.  

Let’s talk about these exemptions from a practical perspective. 

Some employees believe that our organization is violating federal law by continuing to require vaccines after the Supreme Court’s ruling.  That’s not true – right? 

Right – well, at least according to the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA).  Importantly, this remains the case even after the Supreme Court’s recent ruling on OSHA’s ETS.

The EEOC’s Frequently Asked Questions (FAQs) make it abundantly clear that the EEOC does not view vaccination requirements as problematic so long as employers still comply with the reasonable accommodation provisions of laws like Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.  OSHA takes the matter one step further and still “suggests” that employers consider adopting policies that require employee vaccination from COVID-19.  

My company requires vaccines.  How do I get started with the process when an employee requests an exemption from the requirement? 

There’s no sugar-coating this: In some organizations, employees are requesting exemptions from COVID-19 vaccinations in large numbers, and many of these requests are for legitimate reasons.  

First, remember that employees do not need to use any ‘magic words’ to convey such a request.  They do not need to reference any particular laws.  All an employee needs to do is provide an employer with enough information for the employer to understand that the nature of the request is rooted in medical or religious need. 

Second, ensure that your organization has policies or practices that require employees to provide supporting documentation to substantiate the basis for their request for an exemption.  This can be something as simple as a form or a statement from the employee outlining how the COVID-19 vaccination would violate specific tenets of religious beliefs, practices, or observances they may have. It can even simply be a note from the employee’s healthcare provider to help the employer understand how the vaccine might negatively affect a medical condition (remember that in some states like California, employers should not require the employee’s medical diagnosis to be disclosed). 

Third, evaluate the employee’s request in good faith. Work with the employee (and/or their healthcare provider) to try to identify a reasonable accommodation that will meet not only their needs but the needs of your organization.  Whenever possible, document these communications and efforts (even the accommodation attempts may not work out for one reason or another!).  Remember that these laws do not require employers to grant the accommodation of the employee’s choice, only an accommodation that works. 

Fourth, remember that not all requests for accommodation (i.e., exemption) can be granted.  Both Title VII and the ADA permit employers to deny requests for accommodation if the grant of the accommodation would impose an undue hardship on the employer.  As HR professionals, we sometimes overlook the fact that the undue hardship requirements under Title VII and the ADA are different: Under the ADA, “undue hardship” generally refers to a significant difficulty or expense and focuses on the resources and circumstances of the employer in relation to those difficulties or expenses; however, under Title VII, “undue hardship” generally refers to accommodations that would impose more than a de minimis cost or burden on the operations of an organization. 

Finally – and importantly – monitor the accommodation.  All too often we forget about this stage in the process, but it is important for HR professionals to check-in with employees every so often to ensure that an accommodation is still working for an employee and that their needs have not changed. 

Are there any other limitations I should be aware of?

You already know the answer to this question: Of course there are!

For example, employers with collective bargaining obligations and agreements may need to negotiate any such changes to the terms and conditions of employment through the collective bargaining process before implementing such a change. 


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