Exemptions for employee COVID vaccine requirements hard to obtain

Karen Keeter, a volunteer, entertains senior residents during their morning gathering at the William Breman Jewish Home in Atlanta. The staff at Breman is now either fully vaccinated (97%) or have an exemption (3%). The community is able to resume more normalcy. (Hyosub Shin / Hyosub.Shin@ajc.com)
caption arrowCaption
Karen Keeter, a volunteer, entertains senior residents during their morning gathering at the William Breman Jewish Home in Atlanta. The staff at Breman is now either fully vaccinated (97%) or have an exemption (3%). The community is able to resume more normalcy. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

With employee vaccine requirements looming, employers use their discretion on medical or religious exemptions

At his primary care center in Newnan, Dr. Cecil Bennett has recently seen a handful of patients who are not seeking a clean bill of health. They’re looking for a way out of their employers’ COVID-19 vaccine requirement.

Some sound desperate, asking if they have a medical issue, any medical issue at all, that could qualify them for an exemption.

“I try not to judge my patients one way or another,” said Bennett. “But the list is quite small for those who should be exempt from the vaccine. Ethically, I can’t do it.”

Nearly two years into the global pandemic, the threat of the new omicron variant looms. The coronavirus has claimed more than 779,000 U.S. lives, including more than 25,000 Georgians, more employers are ordering their workforce to get vaccinated. The federal government is poised to require the shots as well. Medical or religious exemptions are allowed, but how they’re granted and to whom is unclear.

Some workers are scrambling to apply for exemptions before mandates kick in. Without a vaccine or an exemption, some could lose their jobs.

Atlanta labor and employment attorney Sheri Oluyemi said her office is inundated with calls from employers and employees seeking advice on medical and religious exemptions to vaccine mandates.

caption arrowCaption
Dr. Mike Levine, a volunteer, talks to senior residents during their current event session at William Breman Jewish Home. The staff at Breman is now either fully vaccinated (97%) or have an exemption (3%). (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Dr. Mike Levine, a volunteer, talks to senior residents during their current event session at William Breman Jewish Home. The staff at Breman is now either fully vaccinated (97%) or have an exemption (3%). (Hyosub Shin / Hyosub.Shin@ajc.com)
caption arrowCaption
Dr. Mike Levine, a volunteer, talks to senior residents during their current event session at William Breman Jewish Home. The staff at Breman is now either fully vaccinated (97%) or have an exemption (3%). (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Oluyemi said for employees, “their main concern is that they don’t want to take the mandatory vaccine, but they also don’t want to lose their livelihood.”

Employers across Georgia already grappling with staffing shortages and other day-to-day challenges of the pandemic now face the thorny issue of vaccine mandates and handling exemption requests.

“When you look at the totality of what employers are having to deal with when it comes to COVID, I think it’s fair to say it’s overwhelming for many organizations,” said labor and employment attorney Ken Winkler, with the Atlanta law firm Berman Fink Van Horn. “We are going into new territory here.”

A high-stakes plan

The Biden administration has set Jan. 4 as the deadline for large companies of 100 or more employees to require workers either take the vaccine or submit to weekly tests. If it can withstand legal challenges already filed in the courts, it’s estimated the new federal requirement would affect 84 million workers. Roughly 32 million of them, or just over a third, are unvaccinated, according to the Labor Department’s Occupational Safety and Health Administration.

In Georgia, where only 61% of adults are fully vaccinated according to the Centers for Disease Control and Prevention, the percentage of unvaccinated workers at large companies might be even higher.

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A separate vaccination measure applies to hospitals, nursing homes and other health care facilities that receive Medicare and Medicaid funds. In order to avoid loss of federal funds, those employees must be vaccinated by Jan. 4, with no option for testing in place of the vaccine.

This high-stakes plan to vaccinate swaths of the workforce has already sparked multiple lawsuits. Since October, Georgia Gov. Brian Kemp and the state’s attorney general have joined other states filing lawsuits challenging the requirements. And on Tuesday, a judge issued a preliminary injunction to halt the mandate for healthcare workers. The wave of litigation could delay or complicate the deadlines.

Overall, 96.5% of the 3.5 million federal workers were considered to be in compliance with the administration’s mandate because they either were vaccinated or had an exemption request granted or under consideration, the White House Office of Management and Budget recently reported.

COVID-19 Vaccine Mandates

Jan. 4: Companies with 100 or more employees must ensure either that their workers are fully vaccinated by this date or that they test negative for the coronavirus at least once a week.

Jan: 4: Health care workers are required to be vaccinated by the same deadline but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and nonclinical that receive federal funding from Medicare or Medicaid.

Nov. 22: The deadline for federal employees to be vaccinated. There is no testing option. Federal contractors have until Jan. 4.

Now through the end of the year: The U.S. Army, Air Force, Navy and Marines each have their own vaccine deadlines from November through December.

Exemptions: Employers have an obligation to accommodate medical and religious exemptions from vaccines, unless the accommodation creates an “undue hardship.”

Some employers already have their own requirements in place for at least some employees including Tyson, UPS and Cox Enterprises, which owns The Atlanta Journal-Constitution. Several hospital systems including Piedmont Healthcare, Wellstar Health System and Emory Healthcare also have vaccine requirements in place.

Despite federal guidelines for exemptions, employers have considerable discretion in who gets a pass. For some employers a letter from a religious leader will suffice for a religious exemption, while others have their own paperwork and questionnaires.

Several companies that have already enforced their own mandates, when contacted by the AJC, would not say how many of their workers had applied for exemptions or been approved or denied. They also wouldn’t reveal the criteria they use to evaluate the requests.

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Visitors meet senior residents at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, said they initially set a June vaccine deadline for its staff, but then delayed it due to concerns over losing workers. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Visitors meet senior residents at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, said they initially set a June vaccine deadline for its staff, but then delayed it due to concerns over losing workers. (Hyosub Shin / Hyosub.Shin@ajc.com)
caption arrowCaption
Visitors meet senior residents at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, said they initially set a June vaccine deadline for its staff, but then delayed it due to concerns over losing workers. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Why so secretive?

Employers aren’t “sure which way the wind is blowing,” said Atlanta attorney Charles R. Bridgers, managing member of DeLong-Caldwell-Bridgers-Fitzpatrick & Benjamin law firm in Atlanta. “They may want to be discreet about these exemptions. My sense is they do not want to encourage them or unnecessarily aggravate their own employees and they figure the less they say, the better.”

Worker protections and problems

Accommodations and protections built into employment discrimination law for decades will apply to the vaccine requirements also. Exemptions for people with certain medical conditions are protected under the Americans With Disabilities Act. Exemptions for people with sincerely held religious beliefs are protected under Title VII of the Civil Rights Act.

Exemptions are testing the boundaries of these laws, which require employers to provide a reasonable accommodation for workers unless the accommodation “creates an undue hardship” on the employer’s business.

Simply having a workplace with both vaccinated and unvaccinated staff can inflame workplace conflicts.

ExploreGeorgia employers react to deadline for healthcare workers to be vaccinated

“These are very polarizing issues and people’s beliefs are deeply embedded and that makes for very tense and difficult times, and for HR people dealing with this, as much as the government provides helpful tools, it’s always lacking and some things are unclear and everyone is trying to figure this out,” said Winkler.

So far, said Oluyemi, none of her clients have been approved for an exemption or rejected.

As a general rule, for those getting an exemption, employers should provide reasonable accommodations such as allowing an employee to work remotely or undergo weekly testing and wear personal protective wear.

caption arrowCaption
Dr. Mike Levine, a volunteer, talks to senior residents during their current-events session at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Angela Williams, chief human resources officer for Breman, said they received just under 20 requests for exemptions from its staff of about 650. Williams said most of the exemption requests were for religious reasons. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Dr. Mike Levine, a volunteer, talks to senior residents during their current-events session at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Angela Williams, chief human resources officer for Breman, said they received just under 20 requests for exemptions from its staff of about 650. Williams said most of the exemption requests were for religious reasons. (Hyosub Shin / Hyosub.Shin@ajc.com)
caption arrowCaption
Dr. Mike Levine, a volunteer, talks to senior residents during their current-events session at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Angela Williams, chief human resources officer for Breman, said they received just under 20 requests for exemptions from its staff of about 650. Williams said most of the exemption requests were for religious reasons. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Medical exemptions are relatively straightforward.

According to the Centers for Disease Control and Prevention, only a very narrow category of people shouldn’t get vaccinated: Those who had a severe allergic reaction, called anaphylaxis, immediately after a first vaccine dose; or those who are allergic to a component of the COVID-19 vaccine.

Bennett said so far he has not signed any medical exemption request.

ExploreCOVID vaccine mandates? A mix of big, small Georgia employers say yes

“I take an exemption for any reason seriously,” said Bennett, who in addition to his role as a physician is also an adjunct professor at Morehouse School of Medicine’s Family Medicine. “I have to explain to my patients I can’t ethically give them the exemption. How would I feel if granted an exemption and they died from COVID? Would I be sued by their family?”

The American Medical Association (AMA) House of Delegates approved a resolution stating that only licensed physicians should have the authority to decide if a person needs a medical exemption from vaccines. According to the announcement made Nov. 16, the policy comes in the wake of tens of thousands of people seeking medical exemptions to vaccine mandates.

Sincere beliefs

Religious exemptions from the vaccine are more murky than medical exemptions.

Most of the major faith traditions don’t have restrictions about vaccines and no major religion has come out in opposition to the COVID-19 vaccines. The Catholic Church, Christian Scientists, and Jehovah’s Witnesses have all issued statements saying that their religion does not prohibit members from receiving the vaccine. The Pope has declared getting vaccinated “an act of love.”

A religious belief does not have to be recognized by organized religion, and it can be new, unusual or “seem illogical or unreasonable to others,” according to rules laid out by the Equal Employment Opportunity Commission. But it can’t be founded solely on political or social ideas.

caption arrowCaption
Karen Keeter, a volunteer, talks to senior residents during their morning gathering at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, says, “We knew we had a lot of work to do and a lot of one-on-one discussions” to bring up the vaccination rates. “But we felt the safety of our residents and each other was our highest priority.” (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Karen Keeter, a volunteer, talks to senior residents during their morning gathering at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, says, “We knew we had a lot of work to do and a lot of one-on-one discussions” to bring up the vaccination rates. “But we felt the safety of our residents and each other was our highest priority.” (Hyosub Shin / Hyosub.Shin@ajc.com)
caption arrowCaption
Karen Keeter, a volunteer, talks to senior residents during their morning gathering at William Breman Jewish Home in Atlanta on Wednesday, November 17, 2021. Harley Tabak, President and CEO of Jewish Home Life, which operates Breman, says, “We knew we had a lot of work to do and a lot of one-on-one discussions” to bring up the vaccination rates. “But we felt the safety of our residents and each other was our highest priority.” (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

“A religious exemption, however, can be messy,” Oluyemi said. For some employers “you cannot simply go to your pastor or imam or rabbi to get a note that says these are the tenets of our religion. The employee also has to prove that they sincerely believe those tenets and have practiced them or intend to practice them.”

In recently updated guidance about sincerely held religious beliefs for exemptions, the EEOC said if employers doubt whether the employee’s belief is religious in nature or sincerely held, it may make a “limited factual inquiry” to seek additional information.

Jillison Parks, a spokeswoman for the Roman Catholic Diocese of Savannah, said she was not aware of many requests for religious exemptions from taking the shot. Bishop Stephen D. Parkes has recommended against priests giving exemptions to parishoners, but he’s not forbade them, she said.

ExploreAtlanta archbishop says no to religious exemptions for COVID-19 vaccine

In the other large Protestant denominations, there are similar viewpoints.

Bishop Robert C. Wright, leader of the Episcopal churches in middle and north Georgia, said he has not received any requests for religious exemptions from staff, clergy or church members thus far.

“As followers of Jesus of Nazareth’s way of love, we believe that we should reflect that love in the way we take care of neighbors and one another. One expression of love is to urge everyone who can receive the vaccination against COVID to receive it,” he said in a statement.

Perhaps in the strongest statement, Atlanta Archbishop Gregory J. Hartmayer of the Catholic Archdiocese of Atlanta, which includes more than 1 million Catholics living in the 69 counties of north and central Georgia, instructed priests not to sign letters from parishioners requesting a general religious exemption from the vaccine.

In an excerpt from a memo sent in August, Hartmayer wrote that based on the “Congregation for the Doctrine of the Faith, the church body responsible for defending morals and the Catholic doctrine, it is ‘morally acceptable’ to receive the vaccine.”

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Plemon El-Amin, imam emeritus of the Atlanta Masjid of Al-Islam in Atlanta said there is a verse in the Quran that “there is no compulsion in religion,” which he interprets in this case to mean people can’t be forced to receive a vaccine. However, he added that the vaccination is critical to fighting the virus and that the masjid offers the shots to anyone who wants one.

A hospital system in Arkansas mandating the COVID-19 vaccine took a bold approach during its review of employees seeking a religious exemption by claiming the vaccine was developed using fetal cells. Some cells taken from aborted fetuses were used to develop and test COVID-19 vaccines — a routine practice in pharmaceutical research. The vaccines themselves do not contain any fetal cells.

“I try not to judge my patients one way or another. But the list is quite small for those who should be exempt from the vaccine. Ethically, I can't do it."

- Dr. Cecil Bennett

According to an online post by the Fisher Phillips law firm, which represents employers in labor law across the country, the employees seeking the exemption were asked to sign a special attestation form that they do not, and will not, use any other medications that used fetal cells in their development or testing, including Tylenol, Motrin, Ibuprofen, Pepto Bismol, Tums, and Benadryl.

Challenging an employee’s statement of a “sincerely held belief” can be so fraught for employers that attorney Winkler said rather than challenge and investigate, most would prefer to accept the claim and make accommodations to keep the worker in the job.

‘A safe place’

One of the only employers in Atlanta willing to share details on how it has handled vaccine exemptions was Jewish Home Life, which includes Breman Jewish Home, a nursing home, and an assisted living community. Harley Tabak, President and CEO of Jewish Home Life, said they initially set a June vaccine deadline for its staff, but then delayed it due to concerns over losing workers. They later made the vaccine requirement effective Oct. 4.

“We knew we had a lot of work to do and a lot of one-on-one discussions” to bring up the vaccination rates, which hovered around 60% over the summer, he said. “But we felt the safety of our residents and each other was our highest priority,” said Tabak.

Angela Williams, chief human resources officer, said they received just under 20 requests for exemptions from its staff of about 650. Williams met with each employee seeking an exemption.

Williams said most of the exemption requests were for religious reasons. Final result: the staff is now either fully vaccinated (97%) or have an exemption (3%). About 12 employees didn’t comply with the vaccine requirement and no longer work there.

“There are some gray areas and we are treading very carefully,” said Tabak about the exemption process. “We are doing our very best to interpret this and we are doing everything we can to act in good faith to honor what we believe is honest, forthright beliefs on four staff.”

“We feel very good about where we are, and that we are a safe place to work and a safe place to live,” he said.