Medical exemptions to mandates? 5 answers from a legal expert

Medical exemptions to mandates? 5 answers from a legal expert

As vaccine mandates roll out, HR leaders should be prepared for exemption requests to also crop up.

As private employers begin to widely adopt COVID-19 vaccine mandates, they are increasingly encountering resistance from employees who claim to have a medical reason for why they cannot be vaccinated. How are HR leaders, most of whom have no medical background themselves, supposed to evaluate these claims, though? Can they ask for additional information? What if they disagree with the reasoning of the doctor who claims the employee cannot be vaccinated?

The EEOC continues to issue guidance to employers on how to evaluate medical exemption requests, but unfortunately, not every situation will be covered in that guidance. Below we set out the basic process by which an employer should evaluate a medical exemption request, but of course, the process—and outcome—will depend on many factors, including your location (and whether there are relevant state and/or local laws that apply to your jurisdiction), the type of work the employer does and the type of work the particular employee performs.

The Americans with Disabilities Act is a good place for employers to start their analysis. As you will see, the process of evaluating a medical exemption request to a vaccine mandate is not unlike the process to evaluate an employee’s request for a reasonable accommodation under the ADA, which will be familiar to most employers.

What do you do if your employee does not want to be vaccinated?

The first thing an employer needs to figure out is why the employee says he or she doesn’t want a vaccine. If the employee just “doesn’t want” the vaccine, that is not going to trigger any obligations by the employer, and the employer is generally free to terminate the employee’s employment at that point. But if the employee says he or she “cannot” get the vaccine, the employer needs to figure out why. The simplest way to do this is just to ask; if the employee says it is for a medical or religious reason, the employer can inquire further.

Your employee says he or she cannot be vaccinated because of a medical reason. Now what?

If an employee claims to have a medical issue that prevents the employee from being vaccinated, the employer can ask for documentation from the employee’s doctor to back up the employee’s claim.

Your employee gives you a medical note but you have suspicions or concerns about it. Do you have to accept it?

No, an employer does not have to automatically accept a note from a doctor. Just like in any other situation where an employee is seeking a reasonable accommodation under the ADA, or relevant state or city anti-discrimination laws, the employer can follow up and ask questions to determine whether to give a medical exemption from the mandatory vaccine policy. For example, if the employee’s medical note is written by a doctor in a state that the employee does not live in, it could be reasonable for the employer to ask how long the doctor has been treating the employee, to try to determine whether there is a real doctor-patient relationship or if the employee bought the note from the internet. Similarly, if the note is from someone claiming to be a “doctor” but who lacks a medical license, such as a holistic practitioner or a chiropractor, the employer is not obligated to accept the note.

My employee has a legitimate doctor’s note. Now what?

Once the employer has been satisfied that there is a medical reason why the employee cannot be vaccinated, that is not the end of the process. Next—just like with any other reasonable accommodation request—the employer must engage in the interactive process to determine whether there is a way the employer could reasonably accommodate the employee’s medical need.

This can get tricky; it will require an analysis of the employee’s job duties and responsibilities, as well as determining whether there is any way the employer could accommodate them without compromising the health of the other employees working in the vicinity of the unvaccinated employee. The analysis here will differ for each employee, even within the same employer.

For example, if a white-collar office has a mandatory vaccination policy, and the receptionist cannot be vaccinated, the interactive process to determine whether there is an accommodation available might consider whether the receptionist needs to be physically present in the office (probably, to welcome guests and answer telephones), whether the employee can be seated somewhere far away from everyone else or work an alternate shift so that he or she does not interact with other employees (probably not in this case), or whether there is any other way to accommodate the employee. On the other hand, this same analysis, asking the same questions, may turn out differently for an accountant, for example, who may not need to be physically present in the office to do his or her daily work, or who could possibly work an alternate shift to avoid being physically near co-workers.

What if the employer is unable to accommodate the employee?

If, when push comes to shove, the employer is unable to find a reasonable accommodation for the employee, then despite the employee’s medical note, the employer is within its rights to terminate the employee’s job.

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