Handling Employee Religious Objections To Mandatory Vaccine Policies
October 07, 2021
Whether an employer decides to have a mandatory vaccine policy (or is required to do so by a government mandate), it will have to manage employee requests to be excused from those requirements based on a disability or a religious belief. While granting an accommodation based on a disability can easily be made by requiring employee to provide medical certification, the more difficult consideration may be when employees object to receiving a vaccine based on a religious belief.
The Basis for a Religious Accommodation
Under Title VII, an employer must provide reasonable accommodation of an applicant's or employee's sincerely held religious beliefs or practices – or lack thereof, if an accommodation will not pose an undue hardship on the employer's business operation.
The U.S. Equal Employment Opportunity Commission (EEOC) defines" religion" broadly. Therefore, an employer must reasonably accommodate not just employees who belong to traditional, organized religions (such as Christianity, Judaism, Islam, or Buddhism), but also those that have beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or which may seem illogical or unreasonable. Also, the EEOC has stated that the religious belief or practice engaged in by the employee may be protected, even if the employee is affiliated with a religious group that does not recognize the employee's belief or practice, or if few (or no) other individuals adhere to that belief/practice.
However, religious beliefs do not include political or social philosophies or mere personal preferences.
In handling an employee's request for exemption/accommodation on religious grounds, the threshold question is whether the employee has a "sincerely held religious belief" that conflicts with compliance with the vaccine mandate. So, how do employers figure out whether a religious belief is "sincerely held"?
Determining "Personal" versus "Religious" Beliefs
In determining whether an employee's objection to an employer rule is based on a "sincerely held religious belief," triggering the employer's obligation to consider reasonable accommodations, the EEOC has identified the following four factors:
1. Whether the employee previously acted in a manner inconsistent with the professed belief;
2. Whether the employee's requested accommodation or exception is likely sought for personal or non-religious reasons;
3. Whether the timing of the employee's request renders it suspicious or follows a previous request by the employee for the same accommodation for secular reasons; and
4. Whether the employer has reason to believe the accommodation is sought for non-religious reasons.
Weighing the Belief: Is it Sincerely Held or Not?
This process may involve some serious questioning with the employee, if objective doubts exist, to determine if the expressed belief is "sincerely held." Such questions may include, for example:
- identification of the "religion";
- when, where, and how the employee embraced the "religious practice";
- whether and to what extent the tenets of the employee's religion prohibit the employee's compliance with the employer's mandate;
- whether the employee has previously refused a vaccine or medication on the same religious basis; and
- whether a religious leader can provide a note or documentation verifying the belief.
On the one hand, if the employer determines, in that process, that the employee's objection to receiving the vaccine is not rooted in a "sincerely held religious belief," then the employer may enforce the mandatory vaccination policy with no accommodation to the employee. That determination might result in the employee's job termination if the employee continues to refuse to be vaccinated (raising the specter of a possible lawsuit and underscoring why following a documented process is important).
On the other hand, if the employee demonstrates a sincerely held belief, then the employer must review if a reasonable accommodation is possible, or if no accommodation is possible because doing so would result in "undue hardship."
In this context, Title VII does not define "undue hardship." The courts have found that "undue hardship" as to a religious accommodation exists when an employer is required to bear "more than a de minimis cost or burden "on the business operations to provide the accommodation. Notably, that's a lower standard for employers to meet than the "undue hardship" defense under the ADA. Relevant to this issue is the consideration of workplace safety. Yet, that latter issue may impact certain employers or industries, such as the food industry, perhaps, more than others.
During the pandemic (and outside of this anticipated mandate from the federal government), possible accommodations have included wearing face masks, transitioning an employee to remote working, or shifting the employee's duties to minimize exposure. And, the administration will add, through OSHA, it appears, the requirement of regular testing by the employee.
