I am getting swamped with calls wanting to discuss religious objections to vaccine mandates. I’ve written about President Biden’s vaccine mandate here (Mandate Announcement) here (12/8 Deadline) and here (FAR Clause for Vaccine). Government contractors have deadlines for vaccine compliance that are rapidly approaching. Additionally, many private employers are rolling-out vaccine policies in advance of anticipated OSHA requirements. Nevertheless, many employees don’t want to get vaccinated. And, thanks to the internet, I’m seeing a lot of “cut and paste” religious objections to the vaccine.
For the sake of my clients, I’m not going to re-publish those objections. But, many people seem to have the same beliefs regarding vaccines. Presumably, those employees have read that there are two primary, legal avenues for trying to avoid the vaccine: (1) the Americans with Disabilities Act; and, (2) Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination against individuals because of their “sincerely held religious beliefs.” As I understand the literature, there are few medical reasons for avoiding the vaccine. As a result, I am not seeing many requests for ADA accommodations. Instead, presumably because of the subjectivity of whether a belief is “religious” and/or “sincerely held,” I am seeing many more requests for religious accommodation.
At least for federal contractors, the Safer Federal Workforce Task Force has recognized that employees are entitled to religious accommodations: “A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” (The guidance is found here: Guidance for Federal Contractors.) But, when asked to provide details on reviewing religious accommodation requests, the Task Force punted:
Q4: Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?
A: A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.
So, we know that employers are required to give accommodations. Well, what is the process for giving an accommodation? Generally, there are two steps.
I. DETERMINE IF A RELGIOUS BELIEF IS SINCERELY HELD
Historically, the United States Equal Employment Opportunity Commission has taken a liberal stance on this issue. Here is a link to their guidance on religious discrimination: EEOC: Religious Discrimination. Generally, they don’t want employers second-guessing beliefs:
Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.
The EEOC has not provided any updated guidance on requests for accommodation in relation to vaccine mandates. As a result, employers are left to muddle-through without clear direction. I don’t think there is a “right” or “wrong” way to approach this issue. Instead, I think there is sliding-scale of risk that each employer should review before determining if a belief is sincerely-held:
- Take the employee’s word for it. If an employee says he/she has a religious objection, an employer could just say: “Ok.” This is the easiest way to avoid a potential discrimination claim from the employee. But, for federal contractors, I sincerely doubt that the federal government would accept this approach if vaccine compliance is audited.
- Get an attestation of truthfulness. One step beyond taking the employee’s word is getting them to swear to the truthfulness of their beliefs. Under this approach, the employee would sign a statement swearing or attesting under penalty of perjury that their statement of religious belief is true and correct. This approach probably complies with the EEOC’s desire to avoid second-guessing. It also would provide documentation to the federal government in the event of an audit. Any documentation related to the accommodation process should be kept in a file separate from the employee’s regular personnel file.
- Ask some questions about the belief. Does a “cut and paste” religious statement create an “objective basis for questioning either the religious nature or the sincerity of a particular belief” as recognized by the EEOC’s guidance? Maybe. Some employers are asking a few questions about the nature of an employee’s belief. Can you provide any scripture to support your belief? Can you provide a spiritual advisor that we can talk to who supports your belief? The more questions you ask, the more danger that you run afoul of Title VII. But, you probably get more cover in the event of a federal audit of vaccine compliance.
- Ask a bunch of questions about the belief. One of the primary objections to vaccines is the claim that they were developed from fetal cells — implicating objections to abortion. Some employers who are less risk-avers are providing employees with a list of other medications developed from fetal cells and asking employees to affirm that they will not use those medications. If you are going to question the sincerity of belief, the EEOC’s guidance says that the following are factors that could be considered: “whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”
- Determine that the belief is not sincerely held. This is the most-aggressive stance, because it opens you up to claims of religious discrimination under Title VII. If you are going to determine that a belief is not sincerely held, be prepared to explain why you came to that conclusion and have documentation of your decision.
II. ENGAGE IN THE ACCOMMODATION PROCESS
A sincerely-held religious belief is not a “get out of jail free” card. Employees don’t get to saunter around the workplace, consequence-free, because they have an objection. Instead, Title VII merely requires an accommodation of a sincerely-held belief. For federal contractor employees, unvaccinated employees must be masked in the workplace and in federal facilities. Other accommodations designed to honor a belief, while also protecting co-employees, could include: weekly COVID-19 testing; changing work locations to increase distance from other employees; reassignment to another vacant and available position; telework; unpaid leave; or, a combination of options.
In some circumstances, it might not be possible to accommodate a religious belief. Typically, this occurs where the only accommodation requested or available imposes an “undue hardship” on the employer. The “undue hardship” standard is different from the “undue burden” analysis that sometimes occurs in disability accommodation cases. An undue hardship is one that causes “more than a de minimis cost” to an employer. But, the cost is not just monetary. Instead, an undue hardship can be judged by the general burden on the conduct of an employer’s business. The EEOC’s guidance recognizes that undue hardship can arise where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
When it comes to requests for a religious accommodation, I cannot emphasize the following point enough: GO SLOW. Determine your risk level. Review the applicable facts of each case. Decide if accommodations can be made. And, document, document, document. Obviously, the assistance of a good employment lawyer is invaluable in that process.