Federal Vaccine Mandates: Step-by-Step Compliance Guide for Community Action

This step-by-step compliance guide is intended to help the Community Action network navigate the employee vaccination mandates announced by OSHA, Head Start, and the Centers for Medicare & Medicaid Services (CMS). We describe the planning process your CAA should consider as you develop and update your policies to reflect the new requirements. We also provide template policies and additional resources to assist CAAs in preparing for and implementing the mandates. We will update this resource as additional guidance is issued and legal developments arise.

1/13/22: The OSHA vaccine-or-test mandate has been blocked nationwide by the U.S. Supreme Court. The CMS vaccine mandate has been upheld by the U.S. Supreme Court and is currently in effect.

1/3/22: The Head Start Interim Final Rule establishing the Head Start vaccination and masking mandate has been preliminarily enjoined in 25 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in those 25 states are not required to comply with the rule pending future developments in the litigation.

Regardless of which mandate your CAA implements, it must consider reasonable accommodations for employees covered by federal laws such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII), as well as other state equal employment laws that might apply. You likely already have a process for considering these types of accommodations for other work-related requirements, but you will need to review and update the process for the COVID-19 vaccine, testing, and/or masking mandates. CAAs have the obligation to consider these accommodations under all mandates—OSHA, CMS, Head Start, or a voluntarily-adopted vaccine mandate—even if the mandate does not independently provide for a test-out option.

Note that the Head Start Rule, unlike the OSHA ETS and CMS Rule, requires employers to consider accommodations for volunteers, in addition to employees. Thus, for purposes of the Head Start Rule, CAAs should apply the analysis provided in this section to both employees and volunteers seeking an exemption from the COVID-19 vaccine mandate.

Employees may be entitled to an accommodation if they cannot get the COVID-19 vaccine, wear a face covering, or test for COVID-19, due to a disability, medical contraindication to the vaccine, sincerely held religious belief, or pregnancy. The qualifications for each exemption are described below, but for all requests, the CAA should conduct an individualized assessment known as the interactive process. This is where the CAA and employee communicate to determine whether a reasonable accommodation exists that allows the employee to continue to perform the essential functions of their job despite not meeting the work requirement (i.e., not getting vaccinated, wearing a face covering, or testing for COVID-19). Your CAA would then determine whether the proposed accommodation would pose an undue hardship to the CAA or a direct threat to the health and safety of the employee or others in the workplace.

First, your accommodations policy should describe the procedures and instructions for making an exemption or other accommodation request. The policy may also include accommodation request forms that employees can fill out (see CAPLAW’s Template Medical Exemption Form and Template Religious Exemption Form), as well as a list of required documentation. Having these procedures provides transparency about how accommodation requests will be handled and documented. Your CAA should designate a single reviewer, who will most likely be in the Human Resources department, to handle accommodations requests to help maintain consistency across the agency.

Next, engage in the interactive process with each employee to determine: (1) the basis for the exemption; and (2) possible accommodations. Finally, assess whether the accommodation would pose an undue hardship to your CAA, or direct threat to the health and safety of the employee or others.

Basis for the Exemption

Disability (ADA). If an employee has a disability (defined in the ADA as “a mental or physical impairment that substantially limits one or more major life activities”) that prevents them from getting vaccinated, being tested, and/or wearing a mask, your CAA may request supporting documentation if the need for an accommodation is not obvious. There are a few options for doing this—your CAA can ask for a note from an appropriate health care professional, ask the employee to sign a limited release allowing your CAA to submit a list of specific questions to the health care professional, or discuss the nature of the employee’s disability and functional limitations with the employee. The documentation should describe the individual’s disability and why it prevents the employee from getting the COVID-19 vaccine, being tested and/or wearing a mask.

Medical Contraindication to the Vaccine (CDC). An employee may have a medical history or condition that the CDC considers to be a contraindication to the COVID-19 vaccine. The CDC’s Summary Document for Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Authorized in the United States (September 29, 2021) lists past allergic reactions to a vaccine and known diagnosed allergies to a component of a COVID-19 vaccine as contraindications. Your CAA should request medical documentation substantiating the employee’s conditions and inability to receive the COVID-19 vaccine. Note that under both the Head Start and CMS rules, all documentation confirming recognized clinical contraindications to COVID-19 vaccines or medical need for delay, and which supports the request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice.

Sincerely Held Religious Belief (Title VII). If an employee says they cannot be vaccinated, be tested and/or wear a mask due to a sincerely held religious belief, your CAA should engage in the interactive process to understand the conflict between the belief and the vaccine, testing, or masking requirement. This could include asking the employee for supporting documentation. Under Title VII, a sincerely held religious belief is a “theistic or non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Neither political, social, and economic philosophies, nor personal preferences, qualify as a sincerely held religious belief.

However, the EEOC’s guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Thus, employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance, and the primary analysis will be whether the requested accommodation poses an undue hardship to the employer. However, if an employee requests a religious accommodation, and your CAA is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, your CAA would be justified in requesting additional supporting information, or denying the accommodation request.

Pregnancy (ADA or Title VII/Pregnancy Discrimination Act). The CDC recommends that all women who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future receive the COVID-19 vaccine. However, a pregnant employee may be entitled to an accommodation under the ADA or the Pregnancy Discrimination Act and Title VII. While pregnancy itself is not considered a disability under the ADA, medical conditions related to pregnancy (e.g., severe morning sickness) could rise to the level of a disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, your CAA must consider it under the usual ADA rules (see above).

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Thus, if an employee seeks an exemption from a vaccination, testing and/or masking requirement due to pregnancy, your CAA must, under Title VII and the Pregnancy Discrimination Act, ensure that the employee is not being discriminated against, as compared to other employees who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to an accommodation to the extent that your CAA provides one to other employees who are similar in their ability or inability to work.

Possible Accommodations

If an employee who enters the physical workplace is seeking an accommodation from getting a vaccine, pursuant to the OSHA ETS the employee must: (1) beginning on December 6, 2021, wear face coverings in the workplace, and (2) beginning on January 4, 2022, undergo weekly COVID-19 testing. Under the Head Start Rule, all covered individuals granted an exemption from getting the COVID-19 vaccine must, beginning on January 31, 2022, undergo weekly COVID-19 testing, and must wear a mask beginning on November 30, 2021, including in certain outdoor settings. In other words, the respective testing and masking procedures outlined in the OSHA ETS, CMS rule, and Head Start Rule serve as the minimum safety requirements that all employees who are not fully vaccinated due to a reasonable accommodation must follow.

While not directly addressed by any of the federal mandates, an employee may also request an exemption from testing or masking. However, all three mandates have suggested that for health and safety purposes, testing may be the only reasonable accommodation for employees who cannot get vaccinated. Nevertheless, if an employee is requesting an exemption from testing and masking, your CAA and the employee should engage in the interactive process to explore other possible reasonable accommodations, which may include:

  • Permitting an unvaccinated employee to enter the physical workplace while:
    • working at a social distance from coworkers or nonemployees;
    • working a modified shift or staggering employee shifts to reduce physical contact with others;
    • making changes to the physical work environment to reduce physical contact with others; or
  • Permitting employees to delay getting a COVID-19 vaccination (e.g., during pregnancy);
  • Telecommuting; and
  • Being reassigned to a different workspace.

The EEOC makes clear if an employer grants some accommodations, it is not required to grant all such requests. Note that employers typically must bear the cost of providing a reasonable accommodation under the ADA or Title VII. Some state equal employment laws may also require employers to pay for necessary job modifications. Thus, though neither the OSHA ETS nor the Head Start Rule requires employers to pay for weekly COVID-19 testing, CAAs may be required to pay for the testing if it is provided as an accommodation to an employee under applicable federal or state law.

Undue Hardship or Direct Threat

Even if an employee is eligible for an exemption based on the conditions discussed above, your CAA may deny an accommodation if it poses an undue hardship to the agency. For accommodation requests under the ADA, your CAA may also deny the accommodation if it can show that it would not eliminate the direct threat that the unvaccinated, untested, and/or unmasked employee poses to the health and safety of others in the workplace.

Undue Hardship

While the “undue hardship” analysis applies when reviewing accommodation requests for a disability under the ADA as well as for a sincerely held religious belief under Title VII, what counts as “undue hardship” differs for each. For both types of requests, the EEOC directs employers to consider certain common factors in determining if allowing an employee to be unvaccinated, untested and/or unmasked poses an undue hardship, including: whether the employee works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

However, under the ADA, the standard for showing that an undue hardship exists is a higher one. The employer must show that providing the accommodation will result in “significant difficulty or expense” (29 C.F.R. §1630.2(p)). This means that an employer may bear some burden or cost to provide the accommodation. Thus, your CAA may not deny the accommodation unless the expense or difficulty of providing it is significant.

Alternatively, the standard for undue hardship for religious exemption requests is lower—the Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. The EEOC’s guidance on religious accommodations notes that employers can consider not only direct monetary costs, but also the burden on the conduct of the employer’s business–including the risk of the spread of COVID-19 to other employees or to the public. For example, courts have found undue hardship where a religious accommodation would affect workplace safety. The EEOC has explained further that an employer may revisit its undue hardship analysis such that the employer may discontinue an accommodation if it subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Direct Threat

The “direct threat” analysis applies to requests for accommodations received under the ADA and overlaps, to a certain extent, with the undue hardship analysis. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). This analysis can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated, tested, and/or masked due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s ability to safely perform the essential functions of the job. The factors that make up this assessment are: (1) the duration of the risk posed by the employee; (2) the nature and severity of the potential harm they could cause; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Under the EEOC’s guidance, the determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.

Further, in assessing direct threat, your CAA should consider the type of work environment for the specific employee requesting the accommodation, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other people; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

Document Retention

Your CAA must keep records documenting an employee’s request for an accommodation, medical records collected to substantiate the request, and whether the accommodation was approved or denied. Employers must maintain all information about employee disabilities and medical conditions as confidential medical records, which must be kept separately from an employee’s personnel files. The federal agency responsible for administering the applicable mandate (e.g., OSHA, CMS, Head Start) will likely review records relating to accommodations requests, approvals, and denials as part of any compliance monitoring.

This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance Center. It was created by CAPLAW in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services, Cooperative Agreement Award Number 90ET0467-03-C3. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.