Religious Exemptions for Workplace Vaccination Requirements
Religious Exemptions for Workplace Vaccination Requirements.
We are all waiting on the Office of Management and Budget to approve OSHA’s emergency temporary standard which will require vaccinations for employers with 100 or more employees. Our clients tell us they are particularly concerned about the documentation requirements that the standard might impose.
Meanwhile, on October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) released an updated COVID-19 FAQ providing information on religious objections to workplace vaccine requirements.
There Are No Magical Incantatory Words Needed
The EEOC is now telling employers that employees requesting a religious accommodation under Title VII need not explicitly use the phrase “religious accommodation”. They only have to notify their employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirements.
In addressing accommodation requests, employers should assume that such requests are based on sincerely held religious beliefs. However, where employers have an objective basis for questioning the religious nature or the sincerity of a particular belief, employers may conduct a limited factual inquiry to seek additional information.
What might be an objective basis for questioning an employee’s sincere religious belief? There is nothing wrong with an employer asking an employee: what is your religion, where do you practice your faith, and what book, tract, or published account substantiates your objection to vaccines? These simple questions should be enough to establish an employee’s sincere religious belief.
Employees who refuse to cooperate with an employer’s reasonable request for verification of the sincerity of a stated belief may forfeit later claims that an employer improperly denied them an accommodation.
Objections to Vaccines Must be “Religious”
Employees should also be aware that objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.
Employers may also deny a requested accommodation if the proposed accommodation would pose an “undue hardship” on the employer. Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. Employers should assess undue hardship by considering the particular facts of a request and should be able to demonstrate how much cost or disruption an employee’s suggested accommodation would involve.
What’s a Winning “Undue Hardship” Argument Look Like?
The most compelling “undue hardship” is the cost of one employee’s accommodation being imposed on another group of employees. The smaller the group of employees that endure the cost creates a greater likelihood of an undue hardship. Only rarely is “cost” or “expense” found to be an undue hardship. But if an employer can prove that a religious accommodation makes other employees: unsafe, over-worked, or severely inconvenienced, that may be a winning undue hardship argument.
Employers have discretion to grant some employees religious accommodations from vaccination requirements while refusing others. Finally, if an employer grants an employee a religious accommodation, the employer is not obligated to offer the employee that same accommodation in perpetuity. Employers may discontinue a previously granted accommodation if circumstances change and the accommodation is no longer being used for religious purposes or it begins to create a hardship for the employer.
Your Workplace Vaccination Requirement Should Not Disadvantage Minority Communities or Other Protected Categories
Recent EEOC guidance includes a reminder to employers that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement and as such, employers should be mindful to avoid applying vaccination requirements to employees in any way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Employer Takeaways
There is no more volatile combination than the intersection of religious liberty and workplace safety. Like so many of America’s policy dilemmas, it is left to employers to “thread the needle” and devise a commonsense solution that works for everyone. If your business has a mandatory vaccination requirement, and you know some of your employees have religious objections, be prepared to handle the issue with tact and discretion. Remember, too, that we are a phone call away.