More employers are mandating COVID-19 vaccines, and this has set off a flurry of requests for exemptions – for both medical and religious reasons.
Companies must carefully evaluate each medical and religious exemption request, engage in the interactive dialogue and can obtain documentation.
For every request, the assessment is a case-by-case analysis and not one-size-fits-all.
Religion in general is very personal, and the definition of “religion” under the guidance from courts and the U.S. Equal Employment Opportunity Commission is quite broad.
Title VII of the Civil Rights Act requires that employers with 15 or more employees provide reasonable accommodations for those whose sincerely-held religious belief conflicts with a workplace rule or practice unless doing so would create an undue hardship.
Most traditional religions would not prevent an employee from receiving the vaccine, but the law doesn’t just cover traditional religions.
The EEOC’s 2021 Compliance Manual for Religion explains that Title VII defines “religion” broadly and includes “not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”
According to the EEOC, “A belief is ‘religious’ for Title VII purposes if it is ‘religious’ in the person’s ‘own scheme of things,’ i.e., it is a ‘sincere and meaningful’ belief that ‘occupies a place in the life of its possessor parallel to that filled by ... God.’”
Employers should not consider the reasonableness of an individual’s religious beliefs, and, in fact, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others.”
“An employee’s belief, observance or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few — or no — other people adhere to it.”
To make matters more complex for employers, the EEOC states that religious beliefs include “non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.”
Exempt from “religious beliefs” are “social, political, or economic philosophies, as well as mere personal preferences.”
However, the EEOC cautions that the overlap between a religious and political view does not place it outside the scope of Title VII’s religion protections, “as long as that view is part of a comprehensive religious belief system and is not simply an ‘isolated teaching.’”
Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation. For example, a person might be a vegetarian due to religious reasons or merely because she is trying to eat a healthy diet. The former is covered by Title VII, the latter is not.
If all of this seems virtually impossible to unpack, welcome to the dilemma of every human resources department right now.
Companies should conduct the following analysis upon receiving a request for a reasonable accommodation to be exempt from the COVID-19 vaccine mandate due to religion:
- Does this employee have a sincerely held religious belief as defined by the law?
- Is the employee qualified for the job despite this belief?
- What accommodations are sought (for instance, to telework or be exempt from the vaccination requirement) and will the accommodation be effective to enable the employee to perform the essential job functions?
- Does the accommodation pose an undue burden? Employers can deny the accommodation request if it has more than a “de minimis cost or burden on business operations.” This standard is a lower one than the one under the Americans with Disabilities Act, which requires employers to demonstrate “significant difficulty or expense.” Employers relying upon “undue burden” must be able to demonstrate the actual burden.
Reasonable accommodations could include mask wearing, social distancing, telework and/or regular testing.
United Airlines just announced that customer-facing employees who receive a vaccine exemption for religious reasons will be placed on unpaid leave until the “pandemic meaningfully recedes.” Employees with medical exemptions will be placed on temporary medical leave.
While many lawyers have written about the perils of granting religious exemptions and how they are likely to all fail, businesses should truly evaluate the complexity of what it means to have a religion and whether the individual who has presented the documentation meets that definition.
If so, conduct the remaining reasonable accommodation analysis.