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VACCINE TEAM: Vaccine exemptions, it’s not a simple objection

Published: Nov. 5, 2021 at 6:51 PM CDT
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(WSAW) - After the Biden Administration issued its requirement for people to be vaccinated for COVID-19 at businesses with 100 or more employees and health care workers, people have reached out to NewsChannel 7 wondering about exemptions.

For businesses, it is already written into the Department of Labor’s Occupational Safety and Health Administration’s emergency temporary standard. Individuals who do not want to be vaccinated must test for COVID at least weekly and the employer needs to track it. Staff at the roughly 50,000 health care facilities that participate in Medicare and Medicaid programs do not have that out.

“If health systems and workers don’t comply, (the) federal government and CMS, due to the fact that we receive Medicare and Medicaid funds will withhold those funds from any health care entity that doesn’t comply,” Aspirus Health’s president and CEO, Matthew Heywood said.

Per the mandate, health care workers need to complete their vaccination series by Jan. 4, 2022, which means receiving the first dose of a two-dose vaccine no later than Dec. 5.

“They’re going to have to comply. They’re going to have to make sure that their employees get vaccinated by Dec. 5, and they’re going to have to ensure that if their employees don’t follow those rules that their employees are not going to be able to work there.”

There is not a built-in way to opt-out unless you qualify for an exemption, like having a medical reason you cannot get vaccinated. However, unless it is obvious to your employer, Keith Kopplin, an employment attorney shareholder at Ogletree Deakins in Milwaukee said employees should expect to not only provide proof of your medical condition but also why. That includes people who are pregnant.

“Being pregnant in and of itself doesn’t mean you can’t get vaccinated,” Kopplin stated. “But we do hear about health care providers who are telling their patients, their pregnant patients, that they shouldn’t get vaccinated. And I think as an employer, when you start from the perspective of pregnancy all by itself doesn’t mean you can’t get vaccinated, you continue the dialog to get to the point where maybe the health care provider is telling you exactly why that patient can’t get the vaccine, but there are a lot of nuances there to be sure.”

So far research has not shown that the vaccine causes or is correlated with infertility, and people wanting to become pregnant are not protected under the Americans with Disabilities Act either.

“There is no exception to ADA or to pregnancy discrimination or any of those sorts of things relating to a person who wants to become pregnant and is afraid of the effects of the vaccine,” Matthew White, the Equal Rights Division Investigation Bureau Director with the Wisconsin Department of Workforce Development said.

Then there is the exemption for a sincerely held religious belief.

“The religious belief, that doesn’t cover a personal objection to getting vaccinated. It really has to be something that’s a religious belief that’s sincerely held and it also has to actually contradict or conflict of this idea of getting a mandatory vaccination,” Kopplin noted.

The belief does not have to be backed by a religious organization.

“I have yet to see a formal organized religion come out and categorically say that followers cannot get vaccinated,” added Kopplin. “While some of them are saying that it’s an individual choice, but you do really need to have this scenario where you have this sincerely held belief that precludes you from getting vaccinated.”

In fact, many religious organizations have issued statements encouraging people to get vaccinated, such as the Wisconsin Catholic Conference or Christian Science. He said employers can ask for a note from the person’s religious organization.

“The way the law is designed is you shouldn’t question the sincerity of the belief. You should move to the next step and see does that belief actually conflict with this workplace requirement of getting vaccinated,” Kopplin explained from the employer’s perspective.

He cautioned that conceptually, religious beliefs can change, so if an employee has been vaccinated before and now says they now believe in something that would conflict with them getting vaccinated, the employer has to trust that. Again, employers should not question the sincerity of the belief, however, he recommends that employers have those employees document that belief.

If the exemption is granted, the employer may not have to make an accommodation, but they should try.

“If somebody needs an accommodation, first of all, there might be an alternative to letting that person work in the working environment without being vaccinated and maybe it’s remote work and maybe it’s separating them from other coworkers. It’s finding other ways to keep them employed before you get to the point of saying, OK I need to have you on an unpaid leave of absence.”

“The requirement on the employer is much lower in religion and creed cases. Basically, if it imposes any cost at all that’s more than trivial, then an accommodation may not be owed, whereas, under disability law, the employer may be required to incur substantial expenses to accommodate a disability,” White explained.

However, there is an exception to the exception: if the employee’s inability to comply is a direct threat to coworkers or the people they interact with within their job.

“The employer is really looking at: How serious of a threat is it? Is it a threat right now? How long will this threat continue,” White explained. “Once they’ve made the determination that that person is a direct threat, they may have to offer an accommodation even if the person doesn’t have a disability that qualifies under the ADA.”

However, health care workers who work directly with patients will likely have the hardest time fighting that claim.

“I think you need to have a dialog with those employees before they’re terminated, but that’s the exact scenario where I think the employer eventually will get to the point of being able to terminate somebody’s employment if there aren’t suitable alternatives to keep those folks all safe,” Kopplin said.

That is what Heywood noted is why the requirement on health care workers is more strict than those in other professions.

“It is an attempt by the federal government to ensure that all health care workers are safe while they’re providing care for a lot of people that may have COVID and to ensure that they are making the environment safe for their patients.”

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