Employers mandating that employees be vaccinated against COVID-19 should know how to respond to an employee’s request for a religious exemption from the vaccination policy.  In this post, I discuss the process an employer can use to distinguish an employee’s personal opposition to a vaccination from a sincerely held religious belief that qualifies as a religious exemption and what options an employer has to protect its business.

Sincerely Held Religious Belief

When an employee requests a religious accommodation, the first question to ask is whether the employee has a sincerely held religious belief, practice or observance which prevents them from being vaccinated.  Title VII of the Civil Rights Act, states that sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  This vague statement means that employees who have a personal or philosophical disagreement with a vaccine are not entitled to a religious exemption. However, it is difficult to distinguish a personal or philosophical belief from a moral or ethical belief held with the strength of traditional religious views.  The religious belief does not have to be based on traditional religions and could derive from a religion or ethical or moral code with which the employer is unfamiliar.

The U.S. Equal Employment Opportunity Commission (EEOC) has stated that employers should generally assume that an employee’s stated religious belief is sincerely held unless the employer has a good faith and objective basis for questioning the religious nature or the sincerity of the stated belief.  There is little guidance as to the definition of a “good faith and objective basis” for questioning a claim of religious belief.

Documentation of a Request for Religious Exemption

We recommend that employers require employees who claim they have a sincerely held religious belief and request an accommodation, to submit the request in writing explaining the basis for the sincerely held religious belief.  The employer is entitled to request information relating to the accommodation request and require a certification from the employee that the statements, documents and information provided to the employer are true and correct.

An employer who has a good faith and objective basis for questioning the religious nature or the sincerity of the stated belief, can request documentation of the religious belief.  Examples of good faith and objective bases for questioning the validity of a claim for religious exemption include:

• when an employee has never requested an accommodation in the past for religious reasons;
• an employee has made statements to others that they distrust the vaccine;
• an employee quotes an online news article challenging the efficacy of the COVID-19 vaccine.

These statements reflect personal opposition to the vaccine and are inconsistent with the claim that the vaccination is contrary to the employee’s religious belief.  The types of documents that an employer can request could include:

• Explanations from the employee about the nature and principles of the employee’s asserted beliefs and information about when, where and how they follow the practice or belief.
• Religious materials which describe the religious belief or practice.
• Written statements from others, such as religious leaders, with whom the employee has discussed his or her beliefs or who have observed the employee’s past behavior that evidences this religious belief.

Each employee’s request for an exemption should be assessed on a case-by-case basis.  The individual reviewing the request for the religious exemption is entitled to consider whether the employee has engaged in any previous behavior or conduct that either deviates from or is consistent with the principles of his or her beliefs.  For example, perhaps the employee has made previous requests for accommodations for their religious beliefs.  The person reviewing the request is entitled to consider all previous statements made by that employee which may help to ascertain whether the employee’s objection is truly based on a sincerely based religious belief or, rather, is a personal or philosophical objection to the vaccine.  It is advisable for the same person to review and decide all requests for religious accommodation to ensure that these determinations are consistent and objective.

An Interactive Process Should be Used to Determine if an Accommodation is Feasible

If the religious exemption is granted, the employer should engage in an interactive process with the employee to determine whether the exemption from the COVID-19 vaccine requirement can be accommodated without creating a safety risk for other employees or the public.  Examples of possible accommodations include:

• Weekly COVID-19 testing;
• The employee is required to wear a mask at all times;
• Requiring the employee to maintain social distancing from co-workers and/or others;
• Move the employee to a more isolated work area where they will be more than six feet apart from co-workers;
• Reassign the employee to another available position which will allow the unvaccinated employee to work in a more isolated manner.

Employers should discuss the possibility of these options with the employee if they are feasible; an employer is not required to give the employee the specific accommodation the employee has requested.

Whether any accommodations are feasible depends upon the unvaccinated employee’s job duties; the physical set-up of the work place; whether the employee interfaces with the public; and other characteristics unique to the employer and to the unvaccinated employee’s job responsibilities.  There are situations where accommodations are not possible and, in that case, employers have the option to exclude employees who refuse to be vaccinated from the workplace.  In this situation, the employee could be terminated or placed on an unpaid leave of absence until the pandemic subsides.  Employers should not, however, exclude an employee from the workplace without consulting legal counsel.

Accommodations Creating an Undue Hardship

Employers can determine that the accommodation requested by an employee for religious reasons is an undue hardship for the employer.  The existence of “undue hardship” in the context of religious accommodation uses a lower standard than is used to determine “undue hardship” under the Americans With Disabilities Act (ADA).  An undue hardship in connection with a religious accommodation is one that would require more than a de minimis (minor) cost or burden to the organization or the business operations.  In contrast, the standard for undue hardship under the ADA is “significant difficulty or expense.”  Certainly, a safety risk or impact on the business operations or objectives can be considered in determining whether there is an undue hardship.

Conclusion

Religious objections to a mandatory vaccination policy can be very difficult to evaluate.  Employers should be alert to statements which employees make to other employees or to management concerning their personal views of the vaccination. These statements may evidence either a sincerely held religious belief, for which an accommodation may be appropriate, or a personal or philosophical objection to the vaccine, for which no accommodation is required.

If you have questions about your vaccine policies or other workplace policies during this challenging time, I am available to help.  Please feel free to phone or email pkarasov@larkinhoffman.com with any questions you may have.