The adaptation process takes more than lip service – Emploi et RH

United States: The hosting process requires more than lip service

22 October 2021

Kelley Drye & Warren LLP

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Employers implementing mandatory COVID-19 vaccination programs are undoubtedly starting to feel the pressure resulting from an influx of requests for religious and disability accommodations. In all the internal turmoil (and the resulting pressure on human resources departments), employers must remember that not having an adequate process in place to assess and respond to accommodation requests can have real legal consequences. .

An action that has just been filed in the US District Court for the District of Massachusetts illustrates just this point. See, Together Employees et al. vs. Mass General Brigham Inc., file number 1: 21-cv-11686. Mass General, the hospital network employer in this case, has implemented a compulsory vaccination program, announcing that employees who have not been vaccinated would be put on unpaid leave and, eventually, could be fired. The hospital network, as recommended by the EEOC, has urged employees to request medical and / or religious exemptions.

According to the complaint, the lawsuit stems from the hospital’s decision to deny exemption requests from 229 employees. Plaintiff Together Employees, an unincorporated association of affected employees, seeks injunction, claiming the hospital failed to fully analyze their requests and engaged in a massive denial of accommodation without any evidence of undue hardship by Mass General. Employees allege that the hospital network’s accommodation process was designed to prevent employees from adequately supporting their accommodation requests, which resulted in refusals for almost all applicants. Among other issues with the process, employees say the forms did not give them space to explain the need for the exemption, or allow them to attach supporting documents.

This case has just been filed and the employer has not responded. So, there is no way to know if these claims are true. That said, the complaint highlights the fact that simply doing nothing but lip service to the accommodation process will leave employers wide open to legal challenges. Employers should avoid taking a mechanized approach to accommodation requests and instead should meaningfully assess each request based on the employee’s individual situation. Even in the face of a deluge of requests for accommodation, it is always the employer’s obligation to determine whether the requested accommodation really constitutes a direct threat or an undue burden on the company, and whether there is an alternative. adaptation.

This does not mean that accommodation requests cannot be refused based on an individual’s tasks, the amount of interactions with patients and the public, or other factors demonstrating that not being vaccinated will pose an unreasonable risk. However, denials must be factual and objective. And, if there are employees who can do their jobs without these interactions, and therefore can be accommodated, then exemptions may need to be granted.

In other words, the employer must assess each request individually and have a record of the reasons why the accommodation was refused.

As always, Kelley Drye will continue to monitor the progress of this matter and provide updates relating to any further development.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.