Making a disability-related COVID vaccination accommodation request
As companies solidify their approach to employees and vaccination, these requests will become increasingly more common.
Photo by Daniel Schludi on Unsplash
Additionally, this is the first part of a planned two-part article. The second part of this article will focus on providing accommodations for people with long-haul COVID.
Finally, this article only applies to disabilities where scientific consensus from reputable sources has concluded that vaccines in general (or COVID vaccines in particular) are contraindicated for specific disabilities.
I’ve had this article pending in my queue for about five weeks now, waiting for the outcome of the Supreme Court decision on whether the federal government can mandate the COVID vaccine for larger employers and federal subcontractors. However, I’ve received multiple requests to publish it as is. Regardless of how the Supreme Court or state laws decide, there will be a situation in the US where in the not-too-distant future:
Someone has a legitimate disability that prevents them from being vaccinated.
They work for a company where they want to continue employment.
The employer decided voluntarily (or was required) to institute a vaccine mandate.
What are accommodations?
An “accommodations request” is as simple as an individual communicating the following type of request through ANY channel. The request doesn’t have to be written, though in writing is easier to prove the request was made if there is a dispute later.
“I need X to do Y because Z”
Where X is the requested accommodation;
Y is the task being accommodated;
and Z is the reason related to a health condition or disability.
The word “accommodation” does not need to be included in the request. In fact, “accommodation” is a very US-centric term. Other countries use different terms, like “modifications” or “adjustments.”
In the US, “I can’t get a vaccine because I have cancer, can I work from home?” is a legitimate accommodations request at an employer where vaccines are mandatory.
Accommodations that individuals with disabilities can request usually fall into one of the following categories: software, hardware, services, schedule modifications, processes, and work environment. An accommodation request due to the inability to be vaccinated for COVID most likely comes under processes or work environment. If the request is for WFH, then software and hardware might also be involved.
Do all employers have to provide accommodations?
There are a set of very narrow exceptions where employers don’t have to provide accommodations
1. Employers with less than 15 employees
Employers with fifteen or more employees must provide reasonable accommodations such as assistance or changes to a position or workplace to enable employees to do their jobs despite having a disability. If an employer has less than 15 employees, they are exempt from providing reasonable accommodations. But they are not exempt from:
a. Retaliation claims for the request having been made;
b. Bad publicity that results from the organization denying the request;
c. Lower employee productivity and morale.
Note that some states have a lower limit. For example, employers with more than five employees must provide accommodations in California. The number will never be higher than 15.
2. When providing a reasonable accommodation would cause a safety issue
Safety is also a very, very narrow exception. Most reasonable accommodations don’t cause safety issues. A couple of examples might include:
a. Requesting to opt out of fire drill training because of noise sensitivity, and;
b. Requesting to be exempt from drug testing programs because the employee uses marijuana under a doctor’s supervision.
3. When the employee still would not be able to perform the primary tasks of their job even with the accommodations in place.
Let’s say hypothetically, the employee is a surgeon. Working from home as a surgeon is not an option because that person would not be able to perform the primary tasks of their job (which are surgery).
That being said, the EEOC still wants to see employers try to find jobs within their organization that the employee with a disability could do with accommodations before they are terminated. Let’s say the employer needs someone with a medical degree to perform case reviews. It’s all paperwork, so that job can easily be done from home.
4. When providing a reasonable accommodation would pose an undue hardship
This is the accommodation exception typically used by organizations trying to get out of providing reasonable accommodation. However, it is also exceptionally narrow, and most organizations that try and claim undue hardship don’t qualify for it.
The undue hardship exception, defined as an “action requiring significant difficulty or expense,” is quite challenging to argue successfully. Effectively, the employer has to prove that the cost of the reasonable accommodation would push the employer toward bankruptcy. The EEOC does not look at individual departmental budgets. They look at overall organizational finances. If an organization makes a profit or pays dividends, it is almost impossible to prove undue hardship.
Many employers successfully claimed that allowing work from home was an undue hardship in the past. I changed employers once for this very reason. Today, for most individuals who don’t need to be in an office to do their job physically, an undue hardship claim from an employer over a work-from-home request would be laughed out of court.
Who does the employee request to make the accommodations?
Accommodation requests usually start with an individual’s manager. Larger companies generally have a formal channel for submitting accommodations requests to Human Resources (HR). Still, it’s generally considered a good idea for employees to tell their manager that a request has been made. How much detail the employee provides their manager about their disability is entirely up to them.
If the employee is concerned about how their manager may respond to their request, they may go to HR directly. HR personnel cannot discuss specifics of employee health disclosures with anyone outside of HR, including the employee’s manager. Sometimes, it doesn’t hurt to remind HR personnel what their obligations are concerning employees’ private health details.
Who are the agencies that enforce accommodations request laws?
For US employers, it is the Equal Employment Opportunity Commission. Some states have their agencies as well. For example, in California, it is the Department of Fair Employment and Housing.
There are two things the agencies who enforce fair employment laws hate:
when employers “refuse to engage in the interactive process,” which is legalese for “actually have a conversation with the person with a disability and talk about what they need and why.”
when an employer illegally retaliates against the employee for making the request.
Many EEOC disability settlement agreements involve #1, #2, or both types of illegal behavior claims. Retaliation claims, which have been increasing over the past few years, are the #1 reason people with disabilities want to keep their disabilities hidden as much as possible. Too many people with disabilities know someone who was specifically targeted for retaliation immediately after requesting an accommodation.
What happens after the accommodation is requested?
There should be an “interactive process” where the employee and the employer discuss how to provide the employee with what they need to continue employment without creating an undue burden. The interactive process is required for any accommodations request, not just vaccines, and it should be well documented so employers can:
Apply the same steps and standards to every employee
Document the steps they took in reviewing the accommodations request and what went into the final decisions
Usually, the employer will ask the employee to complete a reasonable accommodations intake form. If the disability is hidden (and most vaccine-related disabilities are) or not previously disclosed to the employer, the employee will be asked to provide medical documentation proving the disability.
The key is for the employer to engage in the interactive process with the employee.
Talk to them about what they need and why.
Then either give it to them or propose an alternative.
Refusing to engage with the employee is a one-way ticket to paying out money in settlement costs if the employee files a complaint.
What happens if an employer does not respond to an accommodations request or rejects the request without engaging with the employee?
The EEOC doesn’t like it when the interactive process is not followed, or an accommodations request is rejected out of hand. Here are a few recent cases:
Employer decided to fire employees instead of providing accommodations — Oceanic Time Warner Cable, 800K EEOC settlement.
Sorry, we want to force you to go on leave rather than give you an accommodation — Lockheed Martin 115K EEOC settlement.
Presuming someone is not qualified for a job because of vision loss — Red Roof Inn, Active EEOC lawsuit.
Unfortunately, we cannot provide an ASL interpreter for our events — She Should Run, facing DC’s Office of Human Rights complaint plus lousy publicity.
You need an ASL interpreter? You have been eliminated from consideration for the role. — Conduent $77.5K EEOC settlement. Is anyone surprised that a company that failed to provide an accessible website to which they contractually committed has issues with accommodations for candidates with disabilities?
These are just five of hundreds, if not thousands, of EEOC complaints, settlements, and private lawsuits filed every year over failure to treat disabled employees fairly or equally.
Will the employee always get the requested accommodation?
TL;DR: No, employees do not necessarily get the exact accommodation they request. Suppose the request is for a Cadillac solution, and the employer can accommodate the disability by providing a Kia. In that case, the employer is only required to provide the employee with a Kia.
Example: The coffee cans in the breakrooms where I work were kept on 6-foot-high shelves that I could not reach for my wheelchair. If I requested that all the kitchens be remodeled, that is a “Cadillac” request. If the employer changes instructions to the kitchen staff to keep everything employees need to reach between 15 and 48 inches, that is the Kia solution and solves my problem.
In short, employers are not required to build employees a separate office building because they can’t be vaccinated. They may, however, be asked to provide an employee with an office with HEPA filtration or allow an employee to work from home due to their vaccination status.
Why do organizations say “no” to reasonable accommodation requests?
I believe the lack of organizational interest in their employees’ well-being goes back to the long-discredited trope of viewing disability through the lens of charity. If organizations authentically cared about inclusion or all people with disabilities, they would give their internal tools and processes as much (if not more) attention as those that are public-facing.
More often than not, organizational response to reasonable accommodations requests is reactive, not proactive.
Frequently, too much focus is placed on granting the accommodation creating a precedent, i.e., “If I grant this accommodation for this person, I’m going to get swamped with similar requests and have to grant them too.”
Finally, those employees with disabilities that are perceived as a legal threat (i.e., the proverbial “squeaky wheel”) get more attention.
Consciously or not, executives view employees with disabilities as non-threatening from the legal perspective — quite possibly in part because of an old-fashioned belief that people with disabilities should be grateful for having a job at all. This belief and fear of retaliation are two major reasons employees with hidden disabilities (70 % of all disabilities) go to great lengths to avoid even anonymous disclosure of their disability in the workplace to avoid active discrimination. “Passing” as non-disabled hurts both the employee and the employer in very well-documented ways — lack of full engagement and higher levels of anxiety being the ones most commonly cited. However, in the days of the Great Resignation, more power is in the hands of disabled employees to get jobs elsewhere, and HR and executive staff would be well-recommended to remember that.
Conclusion
The person who knows what accommodation will work the best is … you guessed it … the person requesting the accommodation.
For common accommodation requests like vaccine exemptions or make-up time for doctors’ appointments, come up with a corporate standard for how they will be handled that is not disability-specific.
Train everyone in your organization that employees requesting accommodations need to be taken seriously.
Engage in the interactive process with the employee.
Agree on what will be done and who owns what action items.
FOLLOW-UP — find out if the accommodation is working, and fine-tune if necessary. Suppose an employee is given a work-from-home accommodation for a vaccine because they have cancer. In that case, they may not need that accommodation anymore if their cancer goes into remission.
The final step that most frequently gets forgotten is to celebrate.
You’ve helped an employee be more engaged.
You’ve supported them and helped them be more productive.
You’ve avoided turnover costs and loss of institutional knowledge.
Most importantly, you’ve taken a step to convincing that employee that it is OK to be authentic with their disability at work.
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