Many businesses across the country have implemented COVID vaccine or testing requirements as a best practice. When writing a COVID policy, employers must provide reasonable accommodations for their employees – but what is a reasonable accommodation?

What Is a Reasonable COVID Policy Accommodation?

A reasonable accommodation is “a change in the work environment or the way things are customarily done that would enable a qualified individual… to enjoy equal employment opportunities.” If it imposes an undue hardship, it is not reasonable. The Supreme Court recently paused enforcement of the Emergency Temporary Standard (ETS) for vaccination and testing. Because the Occupational Safety and Health Administration (OSHA) then withdrew the ETS, an employer must create their own COVID accommodation policy, and consider both federal and state laws while doing so.

ADA & Title VII Accommodations

Accommodations must be made for employees under two acts: the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. An accommodation may be considered reasonable under the ADA and not under Title VII or vice versa.

The ADA applies to businesses with fifteen or more employees. It requires businesses to provide appropriate accommodations to employees with physical or mental impairment or employees who are regarded as having such impairment. An employee who meets the skill, experience, education, or other requirements of the job and can perform the essential functions of the role is protected under the ADA.

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Individuals may be exempt from vaccination policies at work if they have a sincerely held religious belief that prohibits vaccination. Note that religious practice may be sincerely held even if not consistently observed. If an employer has a doubt about the individual’s sincerely held religious belief, they may ask limited follow up questions to come to an understanding. According to federal law, religious beliefs under Title VII do not cover social, political, or economic philosophies, or personal preference; however, recent state restrictions on vaccination and masking mandates may allow for employees to seek exemptions or accommodations from COVID policies due to social, political, or philosophical beliefs.

How to Handle COVID Policy Accommodation and Exemption Requests

For employers who have a vaccination or testing requirement in place, there are many ways to provide for reasonable accommodations in their COVID accommodation policy.

  • Testing. Businesses with a vaccine requirement may choose to implement a testing policy for employees who are opposed to vaccination. In this case, employees must have access to tests, and employers must decide who is going to pay for the testing. Write this detail into your COVID policy.
  • Remote Working. Allowing employees to work remotely is a great accommodation. One option would be to select a certain number of days that an employee is allowed to work in the office after they’ve tested negative for COVID. At the end of that time period, they can work remotely or submit to another test.
  • Limiting Interaction. Employers may choose to limit employee interaction with other individuals onsite as an accommodation. These employees may have the same job description with an adjusted physical location, or this process may involve changing job descriptions to allow the business to meet safety concerns. Be careful to avoid demotions if choosing to adjust a job description.
  • Improving Ventilation. Implement rules around common spaces and improve ventilation or air filtration. (This is a great safety step to take regardless of accommodation requests.)
  • Requiring PPE. Businesses may choose to require Personal Protective Equipment (PPE) of all employees instead of requiring it of only unvaccinated employees. This would work well in instances where the company wants to avoid treating employees differently based on their vaccination status. Employers may consider requiring a respirator mask instead of cloth masks, especially during the current omicron variant spike.

Employers can help their workforce to feel better about complying with changes in the workplace by clearly communicating the values that inform the company’s policy to protect the health and safety of all employees. Include language about your company’s values in your COVID accommodation policy.


Employers are required to securely keep medical records, including vaccine and testing records and rosters, confidential and separate from personnel files. Access to medical records should be limited to individuals with a job-related need to access them and should not be disclosed to anyone but the individual owner of the records, or as required by law.

OSHA requires employers to retain employees’ medical records for 30 years. The Federal ETS and Cal-OSHA exempt vaccine cards from the 30-year storage requirement. Because the ETS has been withdrawn, all states except for California lose the 30-year exemption for vaccine cards. (We are hopeful that OSHA will change this requirement despite the withdrawal of the ETS, but for now, implement a plan for retaining those records.)

Self-attestation forms are not considered medical records under OSHA, so employers do not need to keep those for 30 years. They do, however, need to keep them for at least one year since self-attestations qualify as medical records under the ADA.

SixFifty Solutions

SixFifty can help you to create a safe workspace while navigating the tricky legal landscape of an evolving public health situation. Our Return to Work toolset helps companies create a written COVID-19 prevention plan, COVID accommodation policy, religious or medical vaccine exemption forms, vaccine self-attestation forms, and vaccine rosters.

Working with SixFifty is like having the best employment lawyer in the country by your side to update your policies and documents as the law changes.

If you are ready to get started or have any questions, schedule a demo with SixFifty today!