Although most employers were hesitant to implement vaccine mandates after the initial rollout of the COVID-19 shots, the still-surging pandemic (driven by the highly contagious delta variant) has caused many companies to rethink their position. Exemptions may be available, however, to those who can demonstrate a medical condition or sincerely held religious belief barring them from complying with any mandate. Determining an exemption’s exact parameters can be tricky, and employers can expect challenges, as recent headlines show. In one case, several former Washington Nationals employees stated they planned to file discrimination charges with the Equal Employment Opportunity Commission (EEOC) after being fired for refusing the vaccines, allegedly based on their religious beliefs. Keeping in mind the benefits of a vaccine mandate versus the risks of managing one, let’s look at how to respond to employees’ religious objections.
How We Got Here
Hospitals and airlines led the way with employee vaccine requirements. They were soon joined, however, by employers in a variety of industries announcing phased-in mandates for applicants and employees as well as programs designed to reward vaccinated workers while penalizing those who choose not to get the shots.
After the Biden administration’s announcement of its “Path Out of the Pandemic” initiative, even employers still hesitant about enacting vaccine mandates may be required to join the club. Under the new approach announced on September 9, 2021, many federal contractors must enact immediate mandates while many healthcare providers will likely be required to do so shortly after the Centers for Medicare and Medicaid Services (CMS) issues guidance.
And in the biggest change of all, it looks like all employers with 100 or more employees soon may be required to implement COVID-19 vaccine mandates or conduct weekly testing of their workforces. Given the logistical difficulties and potential costs for the testing, it seems likely many employers falling under the new law will prefer to implement vaccine mandates.
Religious Exemptions to Vaccine Mandates
Regardless of the reason for a vaccine mandate at your company (and whether the rule is a voluntary initiative or imposed by applicable law), you’re required to provide reasonable accommodations, absent undue hardship, to employees claiming their religious beliefs conflict with getting the shots. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. The EEOC has stated:
The 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 get the shots 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 the applicable law for your decision.
To avoid running afoul of federal law, if you are enacting a vaccine mandate (or any protocol under which vaccination status materially affects the terms and conditions of employment), you should develop a system for considering and responding to religious objections. And rest assured, those who oppose the shots are well aware of the Title VII religious exemption and will be prepared to put your mandate to the test.
What is a Sincerely Held Religious Belief?
Under Title VII, employers must accommodate an employee’s “sincerely held” religious belief, observance, or practice. Religious beliefs don’t include political or social philosophies or mere personal preferences or fears about the vaccine. The Act doesn’t protect someone who is simply an “anti-vaxxer.”
The EEOC defines religion broadly and cautions you should generally assume an employee’s religious accommodation request is based on a sincerely held religious belief. You aren’t without options, however, and may question the sincerity of an employee’s purported religious belief when you have an objective basis to do so.
The EEOC has identified four factors that can create doubt in an employer’s mind about the sincerity of the employee’s belief:
- The employee has acted in a way that’s inconsistent with the claimed belief;
- The individual is seeking a benefit or exception that’s likely to be sought for nonreligious reasons;
- The timing of the request is questionable (for example, it follows closely on the heels of the same employee’s bid for the same benefit for different reasons); and
- The employer has other reasons to believe the employee is seeking the benefit for secular reasons.
When you have an objective basis for questioning the employee’s stated religious belief, you should request more information before deciding whether to grant the religious accommodation. Use a standardized form to ensure a consistent approach. If the employee’s objection to receiving the COVID-19 vaccine isn’t rooted in a “sincerely held religious belief,” no accommodation is necessary, and you’re free to enforce the mandatory policy.
Unlike the Americans with Disabilities Act (ADA), Title VII doesn’t impose an interactive process requirement. Nevertheless, you and the employee should share information necessary to evaluate the accommodation request.
Failure to confer with the employee isn’t 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 the consideration process, the EEOC says you should at least consider whether measures such as masking or social distancing may permit the unvaccinated worker to be in the workplace safely.
Workplace Safety Can Take Priority
As we’ve suggested, you aren’t required to accommodate an employee’s religious beliefs and practices under Title VII if doing so would impose an undue hardship on your legitimate business interests. EEOC guidance has established you can consider workplace safety as part of the analysis in denying a religious accommodation.
Title VII doesn’t require you to prioritize an employee’s religious beliefs above workplace safety. Courts have stated:
- “Safety considerations are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer’s business”;
- Undue hardship can exist if the proposed accommodation would “either cause or increase safety risks or the risk of legal liability for the employer”; and
- “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, you may have good legal grounds to deny employees’ claims for an exemption from the mandatory policy. Carefully consider the request if it places you and/or other employees at risk for contracting or spreading the virus, therefore compromising workplace safety and resulting in an undue burden on the business.
The nature of the job and the workplace will certainly be in play in making the assessments. For instance, if the employee can perform the job effectively by telework, you’ll likely have a tougher time showing workplace safety concerns preclude a vaccine exemption for her.
It’s also interesting to think about how a COVID-19 testing alternative may play into a religious exemption request, particularly as the Biden administration initiative apparently blesses weekly tests as an acceptable alternative to a vaccine mandate. On the other hand, depending on who will bear the testing costs (which isn’t yet clear), it could be argued that maintaining weekly testing for an unvaccinated workforce could pose an undue financial hardship, particularly for smaller companies.
Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. Notably, it’s an easier measure for you to meet than the ADA’s standard, which applies to requests for accommodations because of a disability.
At the end of the day, in each situation, you must balance Title VII’s requirements for religious freedoms against the need to engage in the continuing battle against the COVID-19 pandemic.
Takeaways for Employers
Ideally, you should think through the issues and have a system in place for processing religious objections before you enact a mandate. When presented with a request for a religious exemption from a vaccine mandate, evaluate the employee’s “sincerely held religious belief.” You aren’t required to blindly accept the belief. You may request more information to evaluate the request.
Additionally, during the COVID-19 outbreak, workplace safety is a serious concern. Many safeguards such as a vaccine mandate can be effective counters to the effect the pandemic is having on your workplace. You may have a defense that exempting an employee from the program creates an “undue hardship” for your company, based on safety and/or financial concerns.
Carefully review the issues, continue to monitor the developments including how the EEOC and the courts respond to the religious exemption challenges, and confer with experienced employment law counsel to ensure ongoing compliance as the situation evolves.
H. Rowan Leathers and Kara E. Shea are members of Butler Snow LLP’s labor and employment practice group in the firm’s Nashville office. You can reach them at firstname.lastname@example.org email@example.com.