Perhaps I should not have been surprised that my clients who have mandated COVID-19 vaccines have seen far more objections to their mandates based on religious grounds than on medical conditions or disabilities. While there are legitimate medical reasons for some people to forgo COVID-19 vaccines (e.g., serious allergies to vaccine components, Guillain-Barré syndrome and certain other health conditions), based on my conversations with my friends who are doctors, many physicians have been refusing patients’ requests for excuses from the vaccine if the patients would really be better off getting vaccinated. Employees are learning that it is much easier to seek a religious exemption from vaccine requirements because they are not required to provide a note from a religious expert attesting to their religious or moral beliefs that prevent them from being vaccinated. They simply need to assert their own personal beliefs. In many cases, employees have simply adapted one of the many “form statements” that are currently circulating on the internet, which is why some employers have seen multiple requests with identical language.
Religious exemptions have presented a challenge to many seasoned human resources managers who have plenty of experience handling requests for disability accommodations, but little or no experience handling requests for religious accommodations. While there are some similarities between the two requests, the legal standards for evaluating the requests are not exactly the same. For one, it doesn’t take much for an employee to establish entitlement to a religious objection. As noted, an employee seeking an accommodation for a religious belief is not required to provide a note from their pastor, priest or spiritual advisor corroborating their beliefs. In fact, the employee does not even have to show that he attends church or is a member of an organized religion. The U.S. Equal Employment Opportunity Commission (EEOC) definition of religious practices embraces this approach, including any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”
While some employers may be tempted to challenge an employee’s proffered explanations for not getting vaccinated, as a general rule, employers should take the employee’s explanation at face value (even if the employer questions the employee’s sincerity). That does not mean that employers can never ask employees any questions about their beliefs, but employers should be diplomatic and avoid aggressive cross examination of the employee. For example, if a Roman Catholic employee claims that getting vaccinated would be contrary to his or her religion, it would not be inappropriate for a human resources manager to gently suggest that the employee might ask a priest if it is okay if he or she get vaccinated (note the Pope has been encouraging Catholics to get vaccinated). However, if an employee sticks to their guns, and shows no interest in pursuing the matter with a spiritual advisor, it would be unwise for the human resources manager to argue with the employee. In that case, the best approach would be to treat the employee’s belief as “sincerely held,” even if it is inconsistent with known views held by the leadership of the employee’s religion.
On the other hand, while it may be easier for an employee to establish a religious objection to a vaccine over a medical objection, the employer’s duty to accommodate religious exemptions is a lesser one, because the “undue hardship” threshold for a religious accommodation claim is lower than that for a disability claim. Under the Americans with Disabilities Act, an undue hardship is defined as an action requiring significant difficulty or expense, whereas for religious accommodation claims under Title VII, the Supreme Court has held that employers do not have to offer accommodations that would result in undue hardship in the form of greater than de minimis costs or burden or that would have negative effects on other employees.
One of the difficulties of analyzing religious exemptions to vaccine mandates, is that most reported religious accommodation cases have involved work-scheduling issues where employees did not want to work on a sabbath, or grooming and dress issues where the employer required adherence to a certain dress code. While there has been some litigation where health care workers challenged influenza vaccine requirements, most have settled, or were dismissed on other grounds unrelated to the undue hardship issue. In cases involving grooming requirements (e.g., an employee who couldn’t wear a respirator because of a beard, or an employee who wouldn’t wear a hard hat because he wore a turban), courts have found safety considerations to be highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer’s business. Similarly, safety considerations will be highly relevant to courts grappling with religious exemptions to vaccine mandates in the months to come. Employers may ultimately take the position that accepting the threat of transmission by unvaccinated employees is an unreasonable accommodation for religious beliefs. However, before taking that position, employers may want to consult a physician and obtain a medical opinion regarding safety risks, in order to anticipate arguments that their claim of increased safety risks was only hypothetical.