Background and Considerations
Under an August 5, 2021, state public health order (the “order”), the CDPH ordered that all health facility workers in California must be fully vaccinated for COVID-19 by September 30. The order provides that workers may be exempt from the vaccination requirements only upon providing the facility operator a declination form, signed by the individual stating either of the following: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons.
Many CAHF members have asked if CAHF can provide guidance and sample forms that facilities can provide to their staff who seek an exemption from the state vaccination mandate, particularly because of firmly held religious beliefs. The following information is provided in response to these requests.
First, CAHF urges facilities to consider their overall policy with respect to vaccinations of staff and residents, including whether the facility wishes to make vaccination a condition for direct care for patients and residents. Facilities should carefully consider the workforce implications of moving unvaccinated, but regularly tested, staff to non-patient care work.
Second, facilities should consider federal, state, and local laws in determining whether to request documentation supporting an exemption request on the basis of a sincerely held religious belief. According to the EEOC, an employer can request documentation supporting an exemption request on the basis of a sincerely held religious belief if the employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance without violating Title VII. See 29 C.F.R. 1605. EEOC guidance states that there should be open dialogue between employees and employers when it comes to confirming religious exceptions. [See https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftn221].
The EEOC COVID Guidance documents states a similar standard.
The CDPH FAQs are helpful as well. Per the FAQs, employees do not have to provide proof for a religious exemption:
o The Public Health Order requires only that workers provide the operator of the facility a declination form, signed by the worker, stating that the worker is declining vaccination based on Religious Beliefs.
Sample Declaration Forms
There are a number of different approaches that facilities can take with regard to declaration forms, and some companies have developed and provided their own company-specific forms to their employees. CAHF offers the following four forms for consideration, as well, with links below. If facilities may wish to adapt any of these forms to adhere to their overall vaccination policy, and may also want to consult their legal counsel.
Note: CAHF provided these four forms to CDPH for review, but received no comments or feedback.
Form A—Religious exemption only:
“Mandatory Vaccination Declination Form – Religious Beliefs” does not ask for a statement in support of the exemption request. Instead, the form indicates that the employee is requesting an exemption on the basis of a sincerely held religious belief. The form also outlines the fact that employees will need to comply with all other non-pharmaceutical interventions and could be terminated for failure to comply. The explanation regarding the order itself is brief.
Form B—Medical exemption only:
“Mandatory Vaccination Declination Form – Qualifying Medical Reason” is similar to Form A, but is designed specifically for exemptions for medical reasons. The form requires a signature from a medical professional, but not necessarily a physician. Under the order, only a physician , nurse practitioner or other licensed medical professional practicing under the license of a physician may sign in support of the exemption. As reflected in the order, the form also specifies that the employee should not disclose any specific diagnosis, disability, or medical information. The order directed that the employee should not include a description of the underlying medical condition or disability.
Form C—Religious or medical exemption:
This form outlines the order and provides a link to resources for the employee. The first page makes it clear that additional documentation may be required to support an exemption. Additionally, the form puts the employee on notice that an accommodation may not be provided if doing so would result in a direct threat to others, if the employee cannot perform their essential job function or if the accommodation creates an undue burden for the employer. Similar to Form A, Form B puts the employee on notice regarding the requirements of other non-pharmaceutical interventions and the possibility of termination for failure to comply.
The religious exemption section requests the reason for the religious exemption and allows for, but does not require, the attachment of additional documentation. The form indicates that the employer may need additional information to approve the exemption. The medical exemption form provides more detail of the grounds for exemption that Form B but does not require the specific description of the underlying medical condition or disability.
Form D—Religious or medical exemption:
This form provides the same background information included in Declination Form B. Accordingly, the form also puts the employee on notice regarding non-pharmaceutical intervention compliance and explains why accommodation may not be possible. (e.g. a direct threat, undue burden and essential job functions).
Form D requires an explanation for the religious exemption request but goes further by requesting an attestation from a spiritual leader. This could be viewed as asking for information that the employer may not be automatically entitled to absent an objective basis for questioning the sincerity of the religious belief. A facility could add qualifying language making it optional and indicate that additional documentation and/or attestation from a spiritual leader may be requested at a later date.
Finally, the form seeks information from the physician or other qualified medical professional as to the medical exemption but does not specifically reference that this should not include a description of the underlying medical condition or disability. At the same time, it does not require that information either.
Note regarding labor union considerations:
CAHF is aware that SEIU has raised objections to forms that require an employee to submit a written statement in support of their request for religious exemption. While the various forms do not request additional supporting documentation, they request additional information that the employer may not be automatically entitled to absent an objective basis for questioning the sincerity of the religious belief.
