Puccini’s opera Madame Butterfly tells the story of a geisha known as Madam Butterfly. Only 15, Butterfly was from a prominent family that lost its wealth, leaving her to work as geisha. U.S. Navy Lieutenant Pinkerton, who is leasing a home in Nagasaki where Butterfly works, agrees to marry Butterfly.
Pinkerton doesn’t appear to take the marriage seriously, as he shares with the U.S. consul that he eventually plans to marry an American woman. Butterfly, on the other hand, is serious about the marriage. In preparation, she went to the Christian religion and converted to Christianity to share Pinkerton's religion. Upset that Butterfly has rejected her ancestral religion, Butterfly’s uncle, a priest called the Bonze, curses her. The remainder of Butterfly’s family also denounces her and leaves the wedding.
The opera resumes three years later, with Butterfly, who has remained in Japan with her and Pinkerton’s son, excitedly awaiting Pinkerton's return. Unbeknownst to her, Pinkerton has married an American woman named Kate, who is accompanying him. Bereft, Butterfly agrees to give her son to Pinkerton and Kate to raise provided Pinkerton picks up his son himself. As Pinkerton approaches, Butterfly embraces her ancestral religion and prays before committing ritual suicide.
Butterfly’s conversion to Christianity (and return to her native religion after learning of Pinkerton’s betrayal) is the subject of academic discussions about the opera. The lyrics characterize Butterfly’s conversion to Christianity as symbolic of her embracing a new life. She says that by turning her back on her family, she shows how much she loves Pinkerton.
Some characterize Butterfly’s return to her ancestral religion at the opera's end as symbolic of reclaiming her life. But the ease with which she returns to her ancestral religion when she realizes Pinkerton has moved on just as easily could be viewed differently – that Butterfly was never sincere in her conversion to Christianity as a religion but agreed to conversion to cement her marriage.
With the recent imposition of COVID-19 vaccine mandates (Mandates), some employees claim that the vaccine conflicts with their religion. So employers are being forced to ask themselves a similar question – whether their employee's asserted religious beliefs are sincere or conveniently adopted as a reason to avoid vaccination.
Recognizing the challenge employers face, on October 28, the federal Equal Employment Opportunity Commission (EEOC) updated its guidance regarding religious objections to Mandates. This article discusses this guidance and how employers should respond to employees who object to Mandates based upon their religious beliefs.
COVID-19 Vaccine Mandates
After COVID-19 vaccines became available, some employers started requiring employees to be vaccinated. More recently, the federal government has adopted a Mandate that requires all federal employees and employees of certain companies with federal contracts or subcontracts to be vaccinated. Employees of companies with over 100 employees also are subject to a Mandate.
Some employees are pushing back on the Mandates. Some employees object to the COVID-19 vaccines because they were only approved by the Food and Drug Administration (FDA) via an Emergency Use Authorization (EUA). Others assert a right to decide for themselves whether to become vaccinated. Still, others voice religious objections to COVID-19 vaccines. And there are people who, due to medical conditions, cannot receive the COVID-19 vaccine.
The EEOC’s Position on Vaccine Mandates
EEOC guidance says that “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with . . . EEO considerations.”
EEOC has said that employers may have to provide reasonable accommodations to a vaccination requirement for employees with a disability that prevents vaccination or have a sincerely held religious belief, practice, or observance that prohibits vaccination. The EEOC also cautions employers about policies that have a disparate impact on individuals in a protected class, such as unequal access to vaccinations.
Religious Exemptions to Vaccine Mandates
Employees with a religious objection to a Mandate must tell their employer there is a conflict between their sincerely held religious beliefs, practice, or observance (Religious Beliefs) and the Mandate. The EEOC has shared its internal request form for this purpose. The form requires the employee to include the following information:
· Name, Job Position, Work Location
· What job requirement or employer policy conflicts with the employee’s Religious Beliefs.
· The nature of the Religious Beliefs that conflict with the job requirement or employer policy
· The accommodation the employee is seeking
· Alternative accommodations that also would eliminate the conflict
When reviewing a request for religious accommodation, employers first must assess whether the employee’s beliefs are religious. While EEOC laws define “religion” broadly, the EEOC clarifies that the law doesn't protect employees whose objection to a Mandate is based upon social, political, economic, or personal preference.
Employers can ask employees to explain the religious nature of their beliefs if the employer is unfamiliar with them. Employees must cooperate with a reasonable employer request to verify the religious belief may lose their right to an accommodation.
But it still can be challenging to determine what is a religion. EEOC says the law defines “religion” to include
all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” . . . if it is “religious” in the person’s “own scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by . . . God.”
When is a Religious Belief “Sincere?”
As if deciding what is and is not a religion wasn't hard enough, once an employer determines that the employee is claiming a religious belief, the employer needs to determine whether the employee's belief is "sincere." This determination may be as challenging as deciding whether Butterfly's conversion to Christianity was sincere.
Butterfly appears to have been motivated to convert by her desire to share her life with Pinkerton rather than her belief in Christianity. But does that make her conversion any less sincere? If, as the story appears to claim, Butterfly was an active adherent to Christianity after her marriage, perhaps her original intention no longer matters. Yet, Butterfly’s haste in returning to her ancestral religion when it became clear her relationship with Pinkerton was over could be considered evidence that her Christian belief was never sincere.
Although commentators can debate Butterfly’s sincerity, employers have no such luxury when evaluating an employee’s request for a reasonable accommodation. As the EEOC notes, this is “largely a matter of individual credibility” of the employee. Often the employer cannot tell whether an employee is sincere. Other times, there may be circumstances that call the employee’s sincerity into question. For instance, if the employee claims their religion prohibits all vaccinations but recently took time off work to get their flu shot, the employer might suspect the employee’s blanket objection to vaccinations isn’t sincere. But the sincerity of an employee who received a flu shot five years ago and claims to have changed their religious adherence might not be suspect.
Still, employers cannot see inside of an employee’s mind to determine their sincerity. So, absent blatant evidence that an employee’s belief is not sincere, employers usually will need to accept the employee’s claimed religious beliefs at face value.
Employees who object to Mandates based upon sincerely held religious beliefs generally will be entitled to reasonable accommodations. Examples of reasonable accommodations include allowing remote work, masks or other personal protective equipment, social distancing, modified shifts, regular COVID-19 testing, or change in job assignments. Center for Disease Control and Prevention recommendations can help employers determine what accommodations would work best in their workplace.
If there are several possible accommodations, the employer gets to decide which one the employee will receive. So, for example, an employee can’t insist on remote work if the employer determines that the employee can enter the workplace, subject to frequent COVID-19 testing and a mask requirement.
Employers Don’t Always Have to Provide Reasonable Accommodations
Employers need not provide accommodation if it would pose an undue hardship on the operation of the employer's business. Undue hardship may exist where the accommodation would impose a significant financial cost, impair workplace safety, diminish efficiency, or push hazardous or burdensome work onto other employees.
EEOC guidance notes that
common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).
So, a nursing home might refuse a request by a caregiver with frequent close contact with patients for accommodations on the grounds of undue hardship. But the same request from the nursing home’s landscaper without direct patient contact might not pose an undue hardship.
Employees who refuse to get vaccinated for reasons other than disability or religion or refuse an employer’s offered reasonable accommodation for their religion or disability are likely to lose their jobs. Those employees usually will be considered to have violated company policy and won’t be eligible for unemployment benefits.
Several states have considered protecting employees who refuse the COVID-19 vaccination. But so far, only Iowa has passed a law that allows employees fired for refusing the COVID-19 vaccine to receive unemployment benefits. Therefore, it appears that in most states, many employees who don’t want to be vaccinated may need to decide between a job and their beliefs.
This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.