Posted On January 11, 2022
This article originally published on HR.com on December 29, 2021 and is republished here with permission from the publication.
Title VII of the 1964 Civil Rights Act (“Title VII”) has long required covered employers to provide reasonable accommodations for an employee’s sincerely held religious beliefs, unless doing so would constitute an undue hardship. Before the COVID-19 (“COVID”) pandemic, requests for religious accommodations were not pervasive or controversial in most workplaces.
However, once COVID vaccines became available and mandated either by employers or the government, the Equal Employment Opportunity Commission (“EEOC”) declared that employers must exempt, from vaccine mandates, employees who have either a medical reason or a religious belief prohibiting them from taking the vaccine.
Nearly overnight, many employers faced a barrage of requests for religious exemptions or accommodations, forcing those employers to evaluate whether a request involved a “sincerely” held belief or merely was a dubious secular excuse to avoid vaccination.
Most religions do not prohibit or object to vaccinations, and many religious leaders, including Pope Francis, publicly have expressed support for COVID vaccinations. Nevertheless, a handful of Christian denominations have theological objections to vaccinations. Moreover, an individual may profess a sincerely held religious belief that is inconsistent with their religion’s stated orthodoxy, making evaluations for religion exemptions tricky and dependent on the specific circumstances.
A. EEOC Guidance
The EEOC emphasizes that the definition of religion is broad and protects beliefs, practices, and observances with which an employer may be unfamiliar. Therefore, employers ordinarily should assume that an employee’s request for a religious exemption is based on a sincerely held religious belief, practice, or observance.
However, if an employee requests a religious exemption, and the employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information.
Objections to COVID 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 and thus do not merit an exemption from a vaccine mandate.
For purposes of evaluating requests for religious exemptions or accommodations, an “undue hardship” means more than minimal cost or burden on the employer (a slightly more lenient standard than evaluating “undue hardship” for disabilities under the Americans with Disabilities Act).
Considerations relevant to evaluating undue hardship can include, among other factors, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Employers also may consider direct monetary costs and the burden on the conduct of the employer’s business – including the risk of the spread of COVID to other employees or to the public.
B. Court Rulings
To date, courts around the country consistently have rejected religious exemption claims related to COVID vaccine mandates and have accepted employers’ undue hardship defenses on this issue. For example, a Massachusetts federal court recently rejected hospital employees’ claims for a religious exemption related to a COVID vaccine mandate and agreed that any accommodation, under the circumstances, would constitute an undue hardship, ruling that:
“To the extent [employees] are requesting masking, socially distancing, or periodic testing as reasonable accommodations, [the employer] is justified in concluding that doing so would present an undue hardship. . . . [The employer] determined that ‘allowing any employee . . . just to mask, engage in periodic testing, and socially distance was not adequate to meet [the hospital’s] urgent health and safety priorities and protect its vulnerable patient population.’ . . .
. . . [P]ermitting the [health care employees] to continue to work . . . without being vaccinated would materially increase the risk of spreading the disease and undermine public trust and confidence in the safety of [the hospital’s] facilities. Those likely harms to [the employer]—while perhaps difficult to measure in terms of dollar amounts—are certainly not de minimis.”
Together Emples v. Mass. Gen. Brigham, Inc., 2021 U.S. Dist. LEXIS 217386 (D.Mass., Nov. 10, 2021) (emphasis added).
The Together court further ruled that allowing unvaccinated employees to continue working in a health care facility potentially would harm the facility’s public image, which alone would constitute more than a de minimis cost, concluding that “Reputational effects on an employer can also impose an undue hardship.”
C. Practical Considerations
Consider the following to help you evaluate a potentially complex request for a religious exemption or accommodation:
Hannah D. Stetson and Reginald W. Belcher are Attorneys/Shareholders with the Turner Padget law firm in South Carolina. They regularly represent and defend employers in state and federal courts and before various governmental agencies. You can reach them at firstname.lastname@example.org and email@example.com.