guide to EXEMPTIONS TO COVID-19 Vaccine Requirements
Disclaimer: CHCA is sharing this information as an educational resource for you to use as needed. The information provided does not constitute legal or medical advice.
Steps to Take When Notified of a COVID-19 Vaccine Requirement*
Health Care Workers (State Health Order 8/5/2021) :
- If you are a member of a union, contact your representative and express your opposition to the requirement.
- Contact the HR department and ask if they have a declination statement.
- The declination statement should have two options: medical or religious exemption. The medical exemption must be signed by a licensed medical professional. The religious exemption might simply be a checkbox or might require a beliefs statement. Caution when writing a religious exemption. See more below.
- Accommodations for those exempted include masking and regular testing.
Private and Public Employees:
- If you are a member of a union, contact your union representative to express opposition to the requirement.
- Your employer should have a system in place for employees who will be exempt for medical or religious reasons. Federal law protects your right to accommodation/exemption.
- The criteria for medical exemption might follow strict CDC guidance or might be up to medical discretion. See more info below for religious exemption.
- Accommodations for those exempted include masking and regular testing.
- Public colleges in California currently offer accommodations for students who have religious or medical reasons to decline.
- Most private colleges allow medical or religious exemption, though a few are only allowing medical exemption.
- Some private K-12 schools are requiring masking and testing of unvaccinated students aged 12 and older. Only CDPH/health officer or the legislature can add a new vaccine requirement, so schools are working around this limitation by not requiring the COVID-19 vaccine, but requiring countermeasures for those who are unvaccinated.
- Accommodations for those exempted include masking and regular testing.
* Some schools and employers are not calling their policy a requirement. Instead, they state that those who do not submit proof of vaccination are assumed to be unvaccinated and must submit to non-pharmaceutical interventions (masking, testing, etc.).
Declining the COVID-19 Vaccination
1. Medical Exemption Considerations:
It is important to find out what criteria your work or school is using in the process of accepting or denying a medical exemption. It might be one of two criteria:
a. Medical Discretion (Broad)
"To be eligible for a Qualified Medical Reasons exemption the worker must also provide to their employer a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate)." CDPH
b. CDC Criteria (Strict)
CDC considers a history of the following to be a contraindication to vaccination with COVID-19 vaccines:
- Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine
- Immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the vaccine
2. Religious Exemption Considerations (California specific):
In California, religious exemption is based on sincerely held beliefs and need not be connected to formal religion. Religious exemptions can vary from a simple check box, to a statement that the vaccine is contrary to religious tenets and practices, to more detailed questions, or to interviews. If a detailed beliefs statement is required, it is important to not include personal medical information or scientific arguments in the request for a religious exemption. The request should focus solely on sincerely held beliefs. Sincerely held belief: if asked to identify your sincerely held religious belief, practice, or observance, you want to share the basis of your request for accommodation. This may include what you grew up believing or what you have come to believe. You might want to include a quote from your particular religion’s sacred texts. Objections based on ingredients can be used in a religious context, but would limit the exemption to those vaccines containing the particular objectionable ingredient. After identifying the belief, you might be expected to explain how the belief conflicts with taking the vaccine. Purchasing a religious exemption or letter from a “mail in” church is discouraged. If a religious exemption is denied and then contested or brought to court, it might be rejected based on prior case law.
Examples where the court upheld an employer rejecting a request for religious exemption:
QUICK REFERENCE to Employee Rights Regarding Required COVID-19 Vaccination
CHCA is sharing this information in response to recent orders that require state employees, state/private health care workers, and school staff to receive a COVID-19 vaccine.
EEOC OVERVIEW of Employees’ Rights:
- Employers can require employees “entering the workplace to be vaccinated for COVID-19...”
- Employers must provide reasonable accommodations for those who are not vaccinated due to “a disability or a sincerely held religious belief, practice, or observance...or pregnancy” and should allow exemptions.
- Religious practices are defined to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.
- The employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if 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 could request additional supporting information.
- Reasonable accommodations might include requiring the employee to: wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.
- Information about employee vaccination status is to be kept confidential.
Your Rights According to EEOC
All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
EEOC “What You Should Know”
Title VII and COVID-19 Vaccinations
K.12. Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance? (12/16/20, updated 5/28/21)
Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests.
EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, 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. See also 29 CFR 1605. (1605.1, 1605.2, 1605.3, Appendix A)
Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6., here. In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.
Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee
29 CFR Part 1605
GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION
“Religious” nature of a practice or belief.
In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States,398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. 1 The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase “religious practice” as used in these Guidelines includes both religious observances and practices, as stated in section 701(j), 42 U.S.C. 2000e(j).
Reasonable accommodation without undue hardship as required by section 701(j) of title VII of the Civil Rights Act of 1964.
(a) Purpose of this section. This section clarifies the obligation imposed by title VII of the Civil Rights Act of 1964, as amended, (sections 701(j), 703 and 717) to accommodate the religious practices of employees and prospective employees. This section does not address other obligations under title VII not to discriminate on grounds of religion, nor other provisions of title VII. This section is not intended to limit any additional obligations to accommodate religious practices which may exist pursuant to constitutional, or other statutory provisions; neither is it intended to provide guidance for statutes which require accommodation on bases other than religion such as section 503 of the Rehabilitation Act of 1973. The legal principles which have been developed with respect to discrimination prohibited by title VII on the bases of race, color, sex, and national origin also apply to religious discrimination in all circumstances other than where an accommodation is required.
(b) Duty to accommodate.
(1) Section 701(j) makes it an unlawful employment practice under section 703(a)(1) for an employer to fail to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business. 2
2 See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
(2) Section 701(j) in conjunction with section 703(c), imposes an obligation on a labor organization to reasonably accommodate the religious practices of an employee or prospective employee, unless the labor organization demonstrates that accommodation would result in undue hardship.
(3) Section 1605.2 is primarily directed to obligations of employers or labor organizations, which are the entities covered by title VII that will most often be required to make an accommodation. However, the principles of § 1605.2 also apply when an accommodation can be required of other entities covered by title VII, such as employment agencies (section 703(b)) or joint labor-management committees controlling apprenticeship or other training or retraining (section 703(d)). (See, for example, § 1605.3(a) “Scheduling of Tests or Other Selection Procedures.”)
(c) Reasonable accommodation.
(1) After an employee or prospective employee notifies the employer or labor organization of his or her need for a religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual's religious practices. A refusal to accommodate is justified only when an employer or labor organization can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.
(2) When there is more than one method of accommodation available which would not cause undue hardship, the Commission will determine whether the accommodation offered is reasonable by examining:
(i) The alternatives for accommodation considered by the employer or labor organization; and
(ii) The alternatives for accommodation, if any, actually offered to the individual requiring accommodation. Some alternatives for accommodating religious practices might disadvantage the individual with respect to his or her employment opportunities, such as compensation, terms, conditions, or privileges of employment. Therefore, when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.
(d) Alternatives for accommodating religious practices.
[... scheduling, transferring, union dues ...]
(e) Undue hardship.
(1) Cost. An employer may assert undue hardship to justify a refusal to accommodate an employee's need to be absent from his or her scheduled duty hours if the employer can demonstrate that the accommodation would require “more than a de minimis cost”. 4 The Commission will determine what constitutes “more than a de minimis cost” with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation. In general, the Commission interprets this phrase as it was used in the Hardison decision to mean that costs similar to the regular payment of premium wages of substitutes, which was at issue in Hardison, would constitute undue hardship. However, the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation. Further, the Commission will presume that generally, the payment of administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost. Administrative costs, for example, include those costs involved in rearranging schedules and recording substitutions for payroll purposes.
4 Hardison, supra, 432 U.S. at 84.
[... seniority rights ...]
[... scheduling & availability to work during an employer's scheduled working hours ...]
CHCA is sharing this information as an educational resource for you to use as needed. The information provided does not constitute legal or medical advice.