Note: This article has been updated to reflect the U.S. Supreme Court’s Jan. 13, 2022 rulings in two vaccine mandate cases. 

As efforts to increase the number of Americans who are vaccinated against COVID-19 ramp up, employees can expect to see more vaccine mandates in their workplaces. 

Over the summer, the California Department of Public Health issued orders requiring certain covered health care facilities and school districts to verify their employees’ vaccination status and implement mandatory regular testing of unvaccinated workers. 

On Sept. 9, as part of his comprehensive strategy to combat the spread of the coronavirus, President Joe Biden announced that he was instructing the Occupational Safety & Health Administration to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing. The rule was anticipated to affect more than 80 million workers nationwide.

On Jan. 13, 2022, the U.S. Supreme Court reinstated a federal injunction blocking OSHA’s so-called vaccine-or-testing rule, which the agency implemented in response to President Biden’s executive order. The high court concluded that OSHA exceeded its authority in issuing the rule. 

The same day, in a second case, the court allowed a Centers for Medicare & Medicaid Services rule requiring healthcare workers to be vaccinated to stand, however.   

While the topic of vaccine mandates remains politically and emotionally charged, employees should be aware of their rights under state and federal law. Employees are still entitled to seek health exemptions under the Americans with Disabilities Act and religious exemptions under Title VII of the Civil Rights Act of 1964. 

Employees who do not get vaccinated for COVID-19 because of a disability are required to tell their employer that they need an exemption or a reasonable accommodation, according to guidance from the Equal Employment Opportunity Commission. Employees do not need to specifically mention the ADA or the phrase “reasonable accommodation,” however. 

The employee and employer then engage in an interactive process to identify potential workplace accommodations that would not impose an undue hardship on the employer, which the courts have defined as having a more than minimal cost or burden.

Under the ADA, an employer can seek more information in support of the exemption from the employee’s doctor or healthcare provider. 

When it comes to religious exemptions, Title VII requires employers to accommodate employees whose sincerely held religious belief, practice, or observance is in conflict with a work requirement, unless providing such an accommodation would create an undue hardship. 

According to the EEOC, the definition of religion in Title VII is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. The EEOC additionally advises employers to ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, practice, or observance. 

If an employee requests a religious accommodation and the employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a particular belief, practice, or observance, the employer would be justified in seeking additional supporting information, the EEOC also advises. 

Employers are required under Title VII to thoroughly consider all possible reasonable accommodations, including telework and reassignment. 

California state law also sets out protections for employees. Under the California Fair Employment and Housing Act, employers may require employees to receive an FDA-approved COVID-19 vaccine, so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity. 

If you have questions about obtaining exemptions on religious or health grounds, reach out to us for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have zealously advocated for workers, recovering hundreds of millions of dollars for clients and class members.