On August 20, 2021, Washington State Governor Jay Inslee issued Proclamation 21-14.1, titled “COVID-19 Vaccination Requirement.” This Proclamation sets forth the State’s policy for mandatory COVID-19 vaccinations for employees in various industries, including state agency workers, educational settings, and health care settings. Covered employees must be fully vaccinated by October 18, 2021.
The term “worker” is broadly defined, and includes employees, on-site contractors, and volunteers. Workers in educational settings include all employees for public and private schools and universities, along with early learning and child care programs. Workers in health care setting include credentialed health care professionals, workers in any setting that is primarily used to provide health care services, and long-term care workers.
Obtaining Proof of Vaccination
A business covered under the Proclamation must obtain proof from its employees that shows they were fully vaccinated as of October 18, 2021. Acceptable forms of proof of vaccination include the following:
It is important to note that a personal attestation is not an acceptable form of proof.
Evaluating Requests for Disability or Religious Exemptions
The Proclamation allows covered employees to seek exemptions from the vaccination requirement for two reasons: (1) if a disability prevents them from receiving the vaccine; or (2) if receiving the vaccine conflicts with a sincerely held religious belief, practice, or observance. Any request for an exemption on these grounds must be honest and made in good faith.
Each exemption request must be reviewed with an “individualized assessment.” The purpose of this assessment is to document (1) the request and (2) the reason the exemption was granted or not. The Proclamation is clear that these requests should not be “rubber stamped.” An “individualized assessment” is required.
An exemption on religious grounds must be based on the employee’s sincerely held religious belief, practice, or observance. A personal preference or political view is not a basis for a religious-based exemption. The law recognizes small and uncommon religions, as well as theistic, moral, and ethical beliefs. These requests can be very tricky to evaluate. If you are not sure whether your employee’s exemption request qualifies, speak with an employment law attorney.
An exemption on disability grounds is easier to evaluate. Employers must obtain proof from an appropriate health care or rehabilitation professional stating why the employee cannot receive the vaccine, for reasons specifically related to the disability / medical concern for which the care provider treats the employee.
Evaluating Whether the Exemption can be Accommodated by the Employer
Qualifying for a religious or disability-based exemption is only part of the analysis. Employers can reject an exemption if the employer is unable to reasonably accommodate the unvaccinated employee. Simply because an employee qualifies for an exemption does not mean that the employee can safely return to the worksite with the ongoing pandemic.
Employers must engage in the “interactive process” to evaluate whether an unvaccinated employee can safely return to work, and if not, whether there is a reasonable accommodation that would allow the employee to do so. Under the Proclamation, employers are not required to provide accommodations if they would cause undue hardship to the employer.
The “interactive process” is used to determine if a plan to allow the unvaccinated employee to safely work can be created. If a plan cannot be created without posing an “undue hardship” on the employer, the accommodation can be denied. For disability-based accommodations, undue hardship means “significant difficulty or expense.” For religious-based accommodations, the standard is lower, requiring only that the accommodation have “more than minimal cost or burden on the employer.” If an accommodation would cause the employer to suffer an undue hardship, the employer may be left with no choice but to deny the employee an accommodation.
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