Although most employers were hesitant to implement vaccine mandates following the initial rollout of the COVID-19 vaccines, the still-surging pandemic, driven by the highly contagious Delta variant, has caused many companies to rethink mandates. Hospitals and airlines led the way, but soon were joined by employers in a variety of industries, in announcing phased-in mandates for applicants and employees, as well as programs designed to reward vaccinated employees while penalizing those who choose to remain unvaccinated. And now, following the Biden Administration’s announcement of its Path Out of the Pandemic initiative, even employers still hesitating on mandates may be required to join the club. Pursuant to this initiative, announced on September 9, 2021, many federal contractors must enact immediate mandates, while many health care providers will likely be required to do so shortly following issuance of guidance from the Centers for Medicare and Medicaid Services. And in the biggest change of all, it looks like all employers with 100 or more employees may be required, at some point in the near future, to implement vaccine mandates, or conduct weekly COVID-19 testing of their workforces. Given the logistical difficulties and potential cost of weekly testing, it seems likely that many employers who fall under the new law will prefer to implement vaccine mandates.
Religious exemptions to vaccine mandates
Regardless of the reason for a mandatory vaccine requirement at your company, and whether your mandate is a voluntary initiative or imposed by applicable law, you are required to provide reasonable accommodations, absent undue hardship, to those employees claiming their religious beliefs conflict with getting vaccinated. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of religion. According to the Equal Employment Opportunity Commission (“EEOC”), “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.”
In other words, you can’t necessarily require employees who object to vaccines on a religious basis to be vaccinated if reasonable accommodations are available. Or if you do require vaccination as a condition of employment, you must make sure you have a solid basis under applicable law for your decision. To avoid running afoul of federal law, if you are enacting a vaccine mandate–or any protocol where vaccination status materially impacts terms and conditions of employment–you should develop a system for considering and responding to religious objections. And rest assured, those who oppose vaccination are well aware of the Title VII religious exemption and will be prepared to put your mandate to the test on that basis.
What is a sincerely held religious belief?
Under Title VII, employers are required to accommodate an employee’s “sincerely held” religious belief, observance, or practice. Religious beliefs do not include political or social philosophies, or mere personal preferences. Someone who is simply an “anti-vaxer” is not protected by Title VII. However, the EEOC defines religion broadly under Title VII, and it cautions that an employer should generally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. An employer is not without options and may question the sincerity of an employee’s purported religious belief where it has an objective basis for doing so.
The EEOC has identified four factors that can create doubt in an employer’s mind as to the sincerity of the employee’s belief. They include the following:
- Whether the employee has acted in a way that is inconsistent with the claimed belief;
- Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
- Whether the timing of the request is questionable (for example, because it follows closely on the heels of the same employee’s request for the same benefit for different reasons); and
- Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
Where an employer has an objective basis for questioning the employee’s stated religious belief, it should request additional information from the employee to decide whether to grant the religious accommodation request. It is a best practice to request this additional information using a standardized form to ensure a consistent approach. Where an employee’s objection to receiving the COVID-19 vaccine is not rooted in a “sincerely held religious belief,” no accommodation must be made and the employer is free to enforce the mandatory vaccination policy.
Title VII, unlike The Americans With Disabilities Act (“ADA”), does not impose an interactive process requirement. However, the employee and employer should share information necessary to evaluate the accommodation request. Failure to confer with the employee is not a violation of Title VII itself, but the lack of any discussion will make it difficult to establish other defenses such as the undue hardship defense. As part of this consideration process, the EEOC says that employers should at least consider whether measures such as masking or social distancing may permit the unvaccinated worker to safely be in the workplace.
Workplace safety can take priority
An employer is not required to accommodate an employee’s religious beliefs and practices pursuant to Title VII if doing so would impose an “undue hardship” on the employer’s legitimate business interests. EEOC Guidance establishes that an employer can consider workplace safety as part of this analysis, in denying a religious accommodation. Title VII does not require that the religious beliefs of an employee be prioritized above safety in the workplace. Courts have stated that “[s]afety considerations are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer’s business,” and that undue hardship can exist if the proposed accommodation would “either cause or increase safety risks or the risk of legal liability for the employer. … Title VII does not require employers to test their safety policies on employees to determine the minimum level of protection needed to avoid injury.”
Given the current explosion of COVID-19 cases, employers may have good legal grounds to deny employees’ claims for an exemption from the mandatory policy. Careful consideration should be given to an employee’s requested accommodation to an employer’s mandatory vaccination policy when it places the employer and/or other employees at risk for contracting or spreading COVID-19 such that workplace safety is compromised, resulting in an undue burden on the employer. The nature of the job and workplace will certainly be in play in making these assessments. For instance, if the employee can perform his or job effectively by telework, an employer will likely have a tougher time showing that workplace safety concerns preclude a vaccine exemption for that employee.
It is also interesting think about how a COVID-19 testing alternative may play into a religious exemption request, particularly as the Biden Administration initiative apparently blesses weekly COVID-19 testing as an acceptable alternative to a vaccine mandate. On the other hand, depending on who will bear the cost for testing (which is not yet clear), it could be argued that maintaining weekly testing for an unvaccinated workforce could pose a financial undue hardship, particularly on a smaller company. Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. Notably, this is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.
At the end of the day, in each situation, the requirements of Title VII that concern religious freedoms must be balanced against the need to engage in the continuing battle against the COVID-19 pandemic.
Employers should think through these issues and have a system in place for processing religious objections before implementing a vaccine mandate. When presented with an employee’s request for religious exemption from a mandatory vaccine requirement, evaluate the employee’s “sincerely held religious belief.” You are not required to blindly accept the employee’s belief. You may request additional information from the employee to evaluate the request.
Additionally, during the COVID-19 pandemic, workplace safety is a serious concern. Many safeguards such as a mandatory vaccine program can be an effective counter to the effect that the pandemic has on your workplace. You may have a defense that exempting an employee out of the mandatory vaccine program creates an “undue hardship” for your company, based on safety and/or financial concerns.
Employers should carefully review these issues, continue to monitor developments, and confer with experienced employment law counsel to ensure ongoing compliance as the situation evolves.