Navigating Exemptions To OSHA's COVID-19 Mandate: Less Than Meets The Eye

Last Friday, the Occupational Safety and Health Administration issued the equivalent of a regulation mandating that employers with more than 100 employees require their employees to receive an approved COVID-19 vaccine or provide evidence of a negative test. The United States Court of Appeals for the Fifth Circuit issued a stay of the new standard the next day. The stay may be lifted, extended, turned into a permanent injunction, or any of a dozen other possibilities.

OSHA's standard contains three major exemptions. First, the employer must provide reasonable accommodations pursuant to the Americans with Disabilities Act. Second, the employer must accommodate sincerely held religious practices. The third exemption is for people who work exclusively outdoors. This article focuses on the first two exemptions. While OSHA's standard may never take effect, its promulgation provides a good occasion to review the reasonable accommodation standard imposed by the ADA and the religious accommodation provisions of Title VII of the Civil Rights Act of 1964.

I. American With Disabilities Act ("ADA")

The ADA is a complex statute that sets standards in a wide range of areas for the treatment of people with disabilities. In the employment setting and for the purposes of this article, the key requirement is that of "reasonable accommodation." An ADA-covered employer must provide a reasonable accommodation to disabled employees if needed so they can perform the essential functions of their jobs.

What does this mean practically? It means that an employer must work with a disabled employee to see if a reasonable accommodation for a disability exists. The purpose of the accommodation is to allow the employee to get the essentials of the job done. Thus, if a person breaks a leg, allowing him/her to complete a long walk to a workstation might qualify as a reasonable accommodation. Another example might involve getting a bigger computer screen for a visually-impaired person who can't do her job with a normal one. All of these things involve (1) an inability to do an essential part of the job (2) due to disability that (3) can be fixed/mitigated by a reasonable investment of resources.

It is unlikely that the ADA will provide a significant exemption from the OSHA mandate (if it takes effect). The reason is that the trigger for the reasonable accommodation standard is having a disability. By definition, the employees getting the test or reporting about test results are healthy, i.e., not disabled (or, technically, "persons with disabilities.") Assuming all employees have COVID or are likely to get it is dangerous for employers as they can be sued for treating someone differently because the employer regards the employee as disabled. The same is true of someone who the employer observes as sick: sniffing, sneezing, coughing, runny nose, headache - what is pre-COVID times was known as a cold. If the employer jumps to the conclusion that the person has COIVD 19, it may be jumping into a lawsuit. The risk in the other direction is obvious as well. This is where an expert employment lawyer would be helpful.

II. Religious Accommodations Under Title VII of the Civil Rights Act

It is unlawful for an employer covered by Title VII to discriminate against a person based on his or her religion. As the EEOC points out, the requirement of non-discrimination "includes refusing to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship (more than a minimal burden on operation of the business)." One standard example is creating shift arrangements so that people can observe the sabbath. Another example is altering grooming standards where a person believes his/her religion requires adherence to certain standards.

When an employer is asked for an accommodation from the new standard, two issues arise - (1) Is the request for an accommodation based on "an employee's sincerely held religious beliefs"? and (2) Would granting the accommodation "impose more than a minimal burden on the operation of the business"?

The first issue is where the interesting questions arise, but for employers navigating the OSHA mandate (should it take effect), the second issue is more important. So long as an employee's requested religious accommodation arises from a sincerely held belief, it must be accommodated. The only requirement is sincerity. The employer is not to judge whether the employee's belief is correct or right or even reasonable. The only requirement is sincerity. For example, in the Catholic world, there are vigorous debates about the morality of vaccination with certain vaccines. (Just a taste, pro and con.) An employer should not referee this or any religious dispute. The question is whether the employee is sincere.

As most employers will notice, the accommodation principle has no logical limit. Where, in practice, the limit lies is in designing an accommodation. Again, the employer must go through the same interactive process of discussing the situation. But, in the end, an employer can lawfully say "no" if the accommodation would "impose more than a minimal burden on the operation of the business." This is a very low standard. (The standard comes from a longstanding Supreme Court decision. Some people have asked the Supreme Court to overturn that decision. Reviewing that debate is beyond the scope of this article).

What this means for the COVID 19 mandate (if it survives) is unclear. Normally, employers' accommodation decisions are reviewed from the perspective of an employee who is arguing that the employer should have given an accommodation but did not. The employer defends by arguing that the accommodation would have caused more than a minimal burden and documents way. Here, the employers's accommodation will be viewed from the opposite perspective. The DOL will argue that because the employer did not have to accommodate the religious practice, it may not do so. In other words, the mandate kicks in where Title VII ends. Normally, an employer can be more protective of religion than required, not less. Here, the government is likely to argue that the mandate prohibits employers from being more protective than necessary.

III. Conclusion

OSHA;'s mandate might not survive the current legal challenges. But if it does, it is unlikely that the ADA and/or the Title VII exemptions will materially affect its scope. Employers should seek advice from competent employment counsel in navigating these tricky issues.