A popular topic right now is the potential impact of the vaccine mandate on Head Start staffing patterns. Programs are trying to be proactive on this, but caution may be a better approach at this time. Rather than have Boards and Policy Councils approving policies, let’s use this time to take a hard look at things likely to be needed in our organizational policies. While doing this, the executive order requirement for vaccination will have time to work through the courts system.

This is going to be a complex approach to an apparently simple requirement.  The Equal Employment Opportunity Commission has already stepped up with technical assistance for organizations. As such It will be very useful to see what firms outside the Head Start world are recommending for policy updates.  

It is anticipated that the vaccination requirements under the President’s Action Plan will be subject to the ADA and Title VII exemptions for disabilities and/or sincerely held religious beliefs, practices, or observances.

Disability/Medical Exceptions to Vaccine Requirement

This language was obtained from the Department of Commerce:

Requests for “medical accommodation” or “medical exceptions” will be treated as requests for a disability accommodation and evaluated and decided under applicable Rehabilitation Act standards for reasonable accommodation absent undue hardship to the agency. An employee may also request a delay for complying with the vaccination requirement based on certain medical considerations that may not justify an exception under the Rehabilitation Act.

https://www.commerce.gov/sites/default/files/2021-10/DOC_Medical_Exception_Request_Form_Fillable-100621.pdf

Religious Exceptions

Excerpted from the SPARK article, “EEOC Provides Updated Guidance on Religious Objections to Employer COVID-19 Vaccine Mandate Requirements”:

The EEOC, in its updated guidance, explained that employees must inform their employer that they are requesting an exemption based upon a sincerely held religious belief. Although employees do not need to use any "magic words" when making a request (i.e., words/phrases such as "religious accommodation" or "Title VII"), employees do need to notify the employer that there is a conflict between their sincerely held religious belief and the employer's COVID-19 vaccination requirement. As a best practice, the employer should provide employees and applicants with information about who to contact, and any applicable procedures used, to request a religious accommodation.

https://www.adp.com/spark/articles/2021/10/eeoc-expands-its-technical-assistance-to-provide-updated-guidance-on-religious-objections-to-employe.aspx

Something interesting to note, EEOC guidance and HIPAA FAQs confirm that employers may ask employees about vaccination status, whether an employee has been tested for COVID-19, and whether an employee is experiencing any symptoms of COVID-19 but should not ask any follow-up questions.

As noted on the govexec website:

While we await additional guidance and possible legal challenges, employers are encouraged to take actions now such as:

• Determining whether they are covered by Executive Order 14042 or the upcoming Labor Department rule;
• Reviewing and updating existing vaccination policies or working with counsel to create a policy;
• Reviewing and understanding privacy requirements under the Americans with Disabilities Act; and,
• Developing a clear process for accommodations requests that comply with the ADA and the provisions of the executive order.

The edict from the White House is clear: the government expects everyone who can get vaccinated to get vaccinated. Pushing the responsibility from the individual to the employer may cause significant headaches, but it is also likely to assist with achieving the desired outcome. The impact of these mandates on federal contractors and employers with over 100 employees will be significant.

https://www.govexec.com/management/2021/09/potential-traps-federal-contractors-covid-19-vaccine-mandate/185534/

Additionally, Head Start programs will also need to be prepared for incorporation of a new vaccine mandate contract clause into new contract awards as well as inclusion of the same requirements in modifications to contracts entered into prior to the executive order’s effective date, particularly through exercising options.

_________________________

J. Christopher Watkins, Executive Director
Training & Technical Assistance Services (T/TAS)
Western Kentucky University

800.882.7482
www.ttas.org
ttas.info@wku.edu
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