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• allergies to ingredients contained in the vaccine;
• religious beliefs prohibiting individuals from obtaining vaccines which either contain or were tested upon cell lines from aborted fetal tissues (not applicable to the Pfizer or Moderna COVID-19 vaccine); or
• ethical and/or moral beliefs prohibiting individuals from consuming or receiving any form of animal product (not applicable to the Pfizer, Moderna or Johnson & Johnson COVID-19 vaccine).
Medical practices implementing a mandatory COVID-19 vaccination policy should ensure that the policy includes
a process for employees who object to the vaccination to apply for an exemption on medical or religious grounds. Medical practices should treat a request for an exemption as a request for reasonable accommodation and consider whether such reasonable accommodation may be extended. When evaluating a request for a medical exemption, medical practices may request medical documentation from the requesting employee if the medical condition is not obvious or already known. Similarly, when evaluating a request for a religious exemption, the medical practice may ask for additional supporting information if the medical practice has an objective basis for questioning the nature or sincerity of a particular belief of the requesting employee.
Note that under guidance issued by the U.S. Equal Employment Opportunity Commission’s (EEOC), the federal agency tasked with enforcing federal employment discrimination laws, an employer’s legal obligation
to accommodate an employee under its COVID-19 vaccination policy due to a medical condition is different from its legal obligation to accommodate an employee due to religious objections, as follows:
• If an employee seeks an exemption to the COVID-19 vaccine due to a medical reason, an employer will need
to accommodate the employee unless a significant difficulty or expense would be imposed on the practice.
• If an employee seeks an exemption to the COVID-19 vaccine policy due to a religious exemption, an employer is not legally obligated to accommodate the employee if more than a minimal cost or burden would be imposed on the employer.
• Medical practices and other employers are permitted to choose to accommodate an employee with a medical or religious objection, even if not legally obligated to do so.
Examples of reasonable accommodations may include requiring the unvaccinated individual to wear a facemask at all times (except when eating or drinking), work at a social distance from co-workers or non-employees, work
a modified shift, undergo periodic testing for COVID-19, be given the opportunity to work remotely if feasible,
or to accept a reassignment if possible. If a reasonable accommodation is not feasible, and the employee
refuses or otherwise continues to be unvaccinated,
the medical practice would need to decide whether disciplinary action in accordance with its vaccination policy, such as unpaid suspension, reassignment or possibly termination, is appropriate. Because medical practices and other employers have a risk exposure to employment discrimination claims in these circumstances, documentation of the process followed by the medical practice will be critical to defending an employment discrimination claim, if asserted.
Physicians and other healthcare workers should confirm the policies and protocols of their employer and/or the facilities where they provide services to provide proof
of COVID-19 vaccination or to apply for or request an exemption or accommodation.
*Kathleen A. Westfall is a member of Kerr, Russell and Weber, PLC. Her practice focuses on health care and insurance. For more information about this article, Mrs. Westfall may be contacted at (313) 961-0200, kwestfall@kerr-russell.com. This publication is furnished for informational purposes only, and receipt hereof does not establish an attorney-client relationship. It does not communicate legal advice by the Wayne County Medical Society, Mrs. Westfall or Kerr, Russell and Weber,PLC. © 2021 Kerr, Russell and Weber, PLC
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