As more and more employers are considering mandatory vaccination policies (especially post FDA approval), let’s not forget the importance of engaging in the interactive process with those workers who have a bona fide medical or religious reason to remain un-vaccinated.
Keep in mind that failure to engage in the interactive process is a separate legal claim in California. Therefore, part of any mandatory vaccination program for California must include a consistent process for assessing the needs of those seeking accommodation. As many of my clients have grappled with this very issue (if only for a small percentage of their workforces), the issues can be quite challenging. For example:
- What type of evidence will the employer require to justify an accommodation?
- If a doctor’s note is necessary for a medical exception, then how much will the doctor’s notes be scrutinized? Will a note from a chiropractor, physical therapist, or cannabis specialist be sufficient?
- What type of note is necessary to obtain an exception for a sincerely held religious belief?
- Will the company allow unvaccinated workers to work-from-home? If not, is that refusal justified and consistent?
- What other options are available? Transfer? What if the other role is at a lower rate?
- What if the role is guest facing? Can the worker remain in the role if not vaccinated? (This can be especially challenging for medical, wellness, spas, and other workplaces that require close interaction between customers and workers)
- Will the company require frequent testing and pay for it? How will that be monitored? And is there local staff available to effectively do that monitoring?
- What happens if the worker claims frequent testing is adversely impacting their health (i.e. causing irritation in the nasal passages) — yes, that issue has come up!
As with any interactive process, there are some best practices:
- Keep a reasonable accommodation log and have someone compliance focused monitor it to ensure consistency.
- Contemporaneously document all options suggested, given, requested, and the outcomes.
- Do not terminate unless and until the interactive process has been documented and vetted.
- Be reasonable and not reactive.
- And of course, plan ahead so you are ready for the onslaught of notes and excuses, because they are coming!