By: Maureen E. James, Esq., and John S. Gannon, Esq.
Sooner or later (probably sometime next month), the Occupational Safety and Health Administration (OSHA) will release its highly publicized rule that will require employers with 100 or more employees to implement mandatory COVID vaccination policies. Similar vaccine mandates have been issued for federal contractors and, at the Massachusetts state-level, mandatory vaccine orders are in place for most staff working at skilled nursing facilities, rest homes, assisted living residences, hospice programs, as well as for home care workers providing in-home, direct care services.
These mandates vary in terms of scope and penalties for noncompliance, but they all have one thing in common: exceptions need to be made for employees who object because of a sincerely held religious belief (unless the employer can show that making an exception would cause undue hardship). But how does the religious accommodation process work?
On October 25, 2021, the U.S. Equal Employment Opportunity Commission updated its technical guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to include a discussion about the religious exemptions process. The added Q&A, “L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates,” addresses some timely issues as many employers are implementing vaccine mandates for their workforce.
We’ve written about the considerations employers should have regarding vaccine mandates, but the new EEOC guidance focuses on the very specific issue of religious exemptions. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion and provides rights for job applicants and employees to request a reasonable accommodation to an employment requirement that conflicts with their sincerely held religious beliefs, practices, or observances. As noted in the EEOC’s guidance, “objections to 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.”
What do employees need to do?
As with medical accommodation requests, employees are responsible for taking the first step. They must inform their employer that they are requesting an exception to the mandate “because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances.” Do they need to use those specific words? No, but they need to provide their employer with sufficient information so that management is on notice of the accommodation request. Religious (and medical) exemption forms work nicely to document whether this first step has been taken. We have template forms that can be provided upon request.
What do employers need to do?
Employers must advise employees regarding whom to contact to request the religious exception. All requests should be evaluated on an individual basis. Just as each employee’s religious beliefs are personally held, each individual’s request for an exception to a COVID vaccine mandate should be evaluated separately.
If an employer receives a request for an exception and they have an objective basis for questioning whether the request is connected to a religious belief or practice, or whether the belief is sincere, then the employer may be able to conduct a limited factual inquiry and/or ask for additional supporting information.
The EEOC warns in its guidance that employers should be very cautious with such queries. First, prior inconsistent behaviors do not mean that the current belief/practice is invalid. Second, much of what the employee is putting forth is based on their individual credibility and that is based on a myriad of factors. That said, if the employee has received vaccines in the past, or their religious leaders have put out information supporting the COVID vaccine, there may be sufficient grounds to probe further.
What if an employer can’t grant an exception?
An employer should consider all means of accommodation, possibly including remote work, masks, social distancing or reassignment. The EEOC notes, “[i]f more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.”
But ultimately, the exception for that employee may cause undue hardship for the employer. The bar as to how much of a negative impact on business operations the exception would have is not fixed. To determine if there is undue hardship, the EEOC and courts look at many factors, such as cost to the employer, risk of spread to other employees and the public, and the burden placed on the job duties and/or efficiency of other positions. Each case is different and employers need to evaluate the objective information available for the impact on the exception and not just the speculative what-ifs.
If accommodation or exception is granted, the EEOC recognizes that the changes to business, medicine and beliefs are all possible. An employer can alter, or even revoke, its previously granted exception or accommodation if the mandate is no longer connected to a religious belief or if it becomes an undue hardship. This decision should not be made lightly and the employer should engage in a proactive dialogue with the employee before making a final decision.
Given public health has been, and likely will continue to be, a larger factor in employment policies, exceptions and accommodations to requirements, such as vaccine mandates, will be an ongoing consideration for employers. If you have questions regarding vaccine mandates, or exceptions from them, please contact us.