Long-term care providers shouldn’t read too much into updated COVID-19 vaccination guidance on religious exemptions released this week by the U.S. Equal Employment Opportunity Commission, according to one legal expert.
“There has been at least one case (New York’s) that considered mandatory vaccination policies that specifically excluded the possibility of religious accommodations, which was struck,” Mark Peters, a partner with Tennessee-based law firm Waller, told McKnight’s Long-Term Care News on Tuesday.
“That ruling, in my view, is consistent with this guidance. There was some early speculation that the promised OSHA [emergency temporary standard] might exclude religious exemption but I think this guidance suggests that will not happen,” he added.
The updated guidance issued on Monday requires employees and applicants to inform their employers if they want an exception to an employer’s COVID-19 vaccine vaccine requirement due to a sincerely held religious belief, practitioner observance. Employers must consider the requests for religious accommodations, but they are not required to protect social, political, economic or personal preferences of employees, also seeing exemptions to a COVID-19 vaccine requirement.
The guidance also states that employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for religious accommodation under Title VII.
Peters explained Title VII’s “undue hardship” burden is different — and less onerous — than proving “undue hardship” under the Americans with Disabilities Act.
“As noted by the EEOC, an undue hardship is something that imposes more than a de minimis burden on the employer. The burden need not be just economic,” he said. For example, it can include the risk of the spread of COVID-19 to other employees or to the public.
“Employers who impose a vaccine mandate on its employees who are working from home, or only a certain group or class of employees (who are not public facing), may have a more difficult time proving undue hardship,” Peters added.
Interim rule ‘imminent’
LeadingAge’s Director of Nursing Home Quality and Policy, Jodi Eyigor, noted Monday that exemptions should be expected to be allowed under a vaccine mandate expected any day now. She called medical and religious or philosophical exemptions “a good bet since federal workers have been allowed them.”
Federal regulators said earlier this month they hoped to announce an interim rule by mid- to late-October.
“It’s coming imminently,” Eyigor told attendees at a breakout session on public policy at the LeadingAge national convention in Atlanta. “I’m checking the CMS policy site and the Federal Register three times a day, even once while I was up here (on the speakers’ platform).”
She said that when the rule is issued, she expects it to be effective immediately. However, compliance enforcement should not be expected for five to six weeks after that, in order to allow the non-vaccinated to receive their shots, per the separate vaccine makers’ protocols.
That timing is “just speculation,” Eyigor noted, reminding that CMS officials, by mandate, are not allowed to discuss details of any rule-making process while it’s underway.
Eyigor emphasized that the vaccine mandate will apply to “anyone who provides services in the building,” which would include staff, practitioners, students, volunteers and others. One highly anticipated detail will be whether federal regulators include surveyors in the mandate, something they have been criticized for not targeting in the past.
She sought to assure attendees that while enactment of the staff vaccination mandates may be imminent, punishment for non-compliance such as expulsion from the Medicare or Medicaid programs will not be.
“Initially, there was a lot of panic, including at LeadingAge,” she recalled. But while professing not to know where CMS would start in the hierarchy of disciplinary measures, she reminded that agency officials have since said that citations and other penalties would likely be first steps — “but not immediate termination.”
Eyigor saids companion guidance from OSHA on vaccination mandates for some non-healthcare workers was expected at the same time as CMS’ coming announcement. That would cover federal workers and companies with more than 100 employees. For the latter, she noted, the total would be tallied by adding up the total number of employees, regardless of how they are spread across sites.