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You have an exemption to getting a COVID vaccine. Can your employer put you on leave?

“It can be tricky,” one labor and employment attorney said.
Pfizer vaccine 08052021
Dustin Guest, immunization coordinator for the Platte County Health Department, displays a dose of the Pfizer COVID-19 vaccine during a vaccination clinic in Parkville, Mo., on Aug. 5. (Tammy Ljungblad | tljungblad@kcstar.com)

More companies are requiring employees to get a COVID-19 vaccine after President Joe Biden unveiled a new rule Thursday mandating millions of American workers to get vaccinated or submit to weekly testing.

Some have sought exemptions for medical or religious regions — but what happens once they’re granted one?

United Airlines announced in an internal memo this week that employees who request a vaccine exemption will be placed on temporary leave at the beginning of October, NPR reported. For those who receive a religious exemption, that means indefinite unpaid leave. Employees with medical exemptions, meanwhile, will be placed on medical leave.

The requirements have prompted questions about reasonable accommodations afforded to employees under federal law.

“This can be very situational, very circumstantial, and depending not only on the employer and what industry they’re in, but what the employee is actually doing as a job,” said Faith Whittaker, chair of the employment practice at Dinsmore & Shohl in Ohio.

What the federal guidelines say

Federal agencies have issued guidance to help employers understand the law as it relates to vaccine mandates.

Companies are allowed to make COVID-19 vaccinations mandatory, according to guidelines released by the Equal Employment Opportunity Commission in June. The Justice Department further clarified in a July memo that a vaccine’s emergency use authorization doesn’t preclude employers from instituting such a requirement.

But the EEOC’s guidelines also require companies with vaccine mandates to provide what’s known as a reasonable accommodation in line with the Americans with Disabilities Act and Title VII of the Civil Rights Act.

The ADA prevents discrimination in the workplace on the basis of disability and applies to those employees who may be medically exempt from getting a vaccine.

Title VII covers several facets of workplace discrimination, including protected religious beliefs.

What is a reasonable accommodation?

Examples of accommodations afforded under federal law include wearing a face mask at work, socially distancing from coworkers, working a modified shift, submitting to periodical testing, working from home or accepting a reassignment.

Lauren Kulpa, a labor and employment attorney and partner at Perkins Coie, said providing reasonable accommodations “can be tricky” given that the law also requires they don’t create undue hardship for the employer.

“Even with a reasonable accommodation, will allowing this person on site cause a direct threat to the health and safety of that individual or their coworkers?” Kulpa said. “That’s the big piece here. The reasonable accommodation still has to make sure that this person is essentially not a danger to themselves or others.”

She said providing those accommodations is fact-specific — not employer-specific.

According to Whittaker, that means companies have to consider what an employee who qualifies for an exemption does and “whether or not that accommodation — such as a leave — is going to work in that situation.” Factors to consider might be whether the employee works directly with customers, how much of the workforce is already vaccinated and if remote work is possible.

“What is acceptable for a manufacturer worker is different for a flight attendant or professional employee of some sort,” Whittaker said.

Under United’s policy, “operational customer-facing roles” such as pilots and flight attendants will be expected to take a leave of absence if they qualify for a vaccine exemption, NPR reported. Those workers were told they could return to work “once the pandemic meaningfully recedes.”

Employees who don’t interact with customers, including technicians and dispatchers, were reportedly told they can still come to work but they will be required to undergo regular testing and wear a mask both indoors and outdoors.

What about temporary leave?

In the past, Kulpa said, unpaid leave has been considered a reasonable accommodation — but the pandemic has added a new layer of complexity.

For a person with a high-risk pregnancy whose health care provider recommends against getting a COVID-19 vaccine, Kulpa said unpaid leave could be considered a reasonable accommodation because there is a clear end date. (The U.S. Centers for Disease Control and Prevention recommends “all pregnant people or people who are thinking about becoming pregnant and those breastfeeding to get vaccinated to protect themselves from COVID-19.”)

But unpaid leave likely can’t be considered a reasonable accommodation for someone who has a chronic medical condition that will indefinitely prevent them from getting the vaccine.

“Unpaid leave can be a form of reasonable accommodation — it just depends on the specific facts and circumstances,” Kulpa said.

There are also places like Montana, which has a law preventing discrimination based on vaccination status.

“In that instance you couldn’t put them on unpaid leave or do anything with them,” Kulpa said.

Given the fluctuating nature of the pandemic, Whittaker said she advises employers to communicate with their employees and be flexible as things continue to change.

“We’re telling our clients to be flexible in the sense of considering various exceptions and not pigeon-holing exactly what you will approve,” she said. “Only because we just aren’t aware of what’s to come given how many things are new for us and for them.”