Many employers are struggling with attempting to accommodate the number of COVID-19 long haulers. These long haulers or individuals who continue to suffer from the long-term effects of COVID-19 are overwhelming the accommodation capacity of many employers.
With the Occupational Health and Safety Administration likely to soon release an emergency temporary standard that will require employers of 100 or more workers to mandate vaccination or weekly tests, many more businesses are likely to soon institute mandatory vaccination policies. This ETS rule is anticipated to also reaffirm the fact that employers must provide reasonable accommodations to employees with legitimate medical or religious exemptions.
This raises an issue for employers that suspect that an employee claiming to suffer from long-term effects of COVID-19 and seeking exemption from vaccination are doing so simply because they are opposed to vaccination, not because of legitimate medical reasons. This makes for a delicate balance between empathy for the potential conditions of a given employee and the safety of the entire workforce.
The solution to this dilemma is to ensure that policies for granting a medical exemption are closely followed. The Americans With Disabilities Act requires an interactive process for determining reasonable accommodations, and this will allow employers to determine if a reasonable accommodation such as remote work or regular testing is possible or if it would cause undue hardship as provided for by the ADA and termination of employment is necessary.
The interactive process gives employers a chance to collect information that is critical to ensuring the legitimacy of a request for exemption, as well as what accommodations are necessary. First, if there is any doubt as to the legitimacy of the long haul COVID-19 effects, then an employer may request medical documentation to support the claim.
Keep in mind that an employer should never presume to make medical decisions on their own and should instead ask the employee to provide documentation from their medical provider stating that the employee would face risk from being vaccinated. If there are still any doubts, then a reputable physician may be retained to act as a consultant and assess the documentation. This can help judge if more information is needed to grant an accommodation.
If employees cannot provide further information that is necessary to judge whether or not they actually possess a disability under the ADA and instead only have a general fear of vaccines, then this is not a qualifying disability. However, if the medical information is sufficient to show a qualifying disability, then employers should engage in an interactive dialogue to determine how they can perform their job while preventing risk to others.
Employers may consider options such as wearing masks and undergoing regular testing, working in areas secluded from close contact with others, and remote work. Suitable accommodation will depend on an employer’s given situation and must be performed with care to ensure an employee does not face undue stigma, and the employer does not face undue hardship.