Vaccine Mandates and Religious Exemptions: Why Employers are Confused

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On January 20, 2021, President Biden issued Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing in which he ordered the heads of executive departments and Federal agencies to immediately take action to require compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by:  on-duty or on-site Federal employees; on-site Federal contractors; and all persons in Federal buildings or on Federal lands. 

Further, on September 9, 2021, President Biden issued Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees in which he ordered that all Federal employees be required to receive the COVID-19 vaccination. On that same day, the President released his COVID-19 Action Plan titled “Path Out of the Pandemic.” President Biden’s plan explained that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) will develop a rule that requires all employers with more than 100 employees to “ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” The President’s plan announced that OSHA will also develop a rule that require employers with more than 100 employees to provide paid time off for the time that it takes for workers to get vaccinated or recover if they suffer post-vaccination symptoms.

In conjunction with the President’s Executive Order and Action Plan, many states, cities and counties around the United States have implemented their own set of rules and regulations regarding vaccine mandates. Some localities have issued hardline rules taking an all-or-nothing approach to vaccine mandates whereas others have adopted a more flexible approach.  The ever-changing, and often times inconsistent, nature of COVID-19 related rules and regulations has presented a challenge to many employers and businesses navigating these new employment law waters. Indeed, many employers are receiving frequent objections to their vaccine mandates based on religious grounds and not all employers have ample experience in handling these types of requests.  

So, what does an employer do when presented with a religious objection to vaccine requirements?

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity (EEO) laws.

In sum, under Title VII of the Civil Rights Act (Title VII), employers must provide reasonable accommodations for workers who have sincerely held religious beliefs — unless doing so poses an undue hardship.

After an employer receives an employee’s request for a religious exemption to the employer-required vaccine, the employer and employee should make a good-faith effort to discuss the employee’s specific circumstances. For example, the employer and employee should share information including, but not limited to, the nature of the religious belief and the limitations on receiving an employer-required vaccination.  The employee should explain his or her sincerely held religious beliefs and how the religious belief conflicts with the employer’s vaccination requirement.

Importantly, it is best practice for employers to take the employee’s explanation at face value, remaining diplomatic and avoiding any combative questioning of the employee. However, that does not mean that an employer is entirely forbidden from asking questions about an employee’s beliefs in this context.  Specifically, if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information regarding the request. The EEOC says that the following factors, either alone or in combination, might undermine an employee’s assertion that he sincerely holds the religious belief at issue: 

  1. “whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  2. whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; 
  3. 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 
  4. whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.” 

If an employer determines that an employee has a sincerely held belief that conflicts with the employer’s vaccine mandate, the employer must next determine if a reasonable accommodation would pose an undue hardship. Under the ADA, undue hardship is determined by conducting an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. Under Title VII, an employer must show that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden.

The EEOC says: “Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.” Thus, in evaluating whether or not an accommodation would impose an undue hardship, businesses should consider, among other things:

  1. The proportion of employees in the workplace who are already partially or fully vaccinated against coronavirus;
  2. 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); 
  3. The number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer);
  4. How many offices the business may have that would need to implement a coronavirus testing program to accommodate exemptions;
  5. How running a coronavirus testing program to accommodate exemptions would affect the workload for the vaccinated co-workers;
  6. The extent of employee contact with non-employees, including those whose vaccination status could be unknown or who may be ineligible for the vaccine;
  7. The medical opinions of a physician regarding safety risks under the business’ particular set of circumstances.

Additionally, the EEOC has provided the following examples of reasonable accommodations that an employer may provide to an employee who is exempted from an employer-required vaccine:

  1. Require non-vaccinated employees to wear a face mask;
  2. Require non-vaccinated employees to work at a social distance from coworkers or non-employees;
  3. Require non-vaccinated employees to work a modified shift;
  4. Require non-vaccinated employees to get periodic tests for COVID-19;
  5. Require non-vaccinated employees to go on unpaid leave;
  6. Give non-vaccinated employees the opportunity to telework; or
  7. Reassign non-vaccinated employees.

Significantly, the EEOC explains that an employee’s objections to a 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. Thus, employers should reiterate their company’s policy and the consequences for not complying with a vaccination mandate when confronted with an employee’s exemption request that is not protected by law.

Additional Information on Equal Employment Opportunity Laws and Religious Objections to Workplace Vaccine Requirements is available at: https://www.eeoc.gov/newsroom/eeoc-issues-updated-COVID-19-technical-assistance-0

The EEOC’s updatedCOVID-19 Technical Assistance is available at:https://www.eeoc.gov/wysk/what-you-should-know-about-COVID-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.12

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