Joseph E. Vaughan, Vaughan Baio & Partners
As companies with more than 100 employees have been called upon to require vaccination against COVID-19 as a condition of employment, it’s likely that employers will be faced with requests for religious exemptions from those who claim vaccination conflicts with their religion. A first step for employers should be to accept the employee’s request as legitimate and then engage with the employee to determine if their beliefs are religious and “sincerely held.”
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion. The law protects not only people who belong to traditional, organized religions, but also others who have “sincerely held religious, ethical, or moral beliefs.”
The Equal Employment Opportunity Commission (EEOC) extends the reach of Title VII’s religious protections to “any aspect of employment,” including any “term or condition of employment.” It logically follows that employees seeking to avoid mandatory vaccination policies on the basis of their sincerely held religious beliefs or practices will be entitled to religious exemptions (i.e., “reasonable accommodations”) under Title VII.
Here are three things to know as you move through the process of considering requests for religious exemptions:
1. Employers should implement a standard procedure, including written documentation of an employee’s accommodation request, for employees to express their concerns in confidence and within a reasonable time. Employers who develop an objective basis for questioning either the religious nature or the sincerity of an employee’s belief should request additional information and consider the four factors established by the EEOC that “might undermine an employee’s assertion that he/she sincerely holds the religious belief at issue.” An anti-vaccination belief not tied to religion is unlikely to afford Title VII protection.
2. Once an employer determines a religious exemption is legitimate, they must allow the employee to come into the workplace unvaccinated. Employers are free to explore alternative accommodations such as requiring unvaccinated employees to work remotely or wear a mask, maintain social distancing and/or produce a negative test result on a regular basis before coming into the workplace. The EEOC encourages employers to engage with the employee to determine what accommodations might be effective, especially if the solution is not immediately apparent.
3. If an employer has granted a religious exemption but later develops a legitimate doubt about the basis for the accommodation request, they are entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that their belief is religious and sincerely held. Employers should be aware though that Title VII prohibits retaliation against an employee engaged in protected activity, which the EEOC has deemed to include a request for religious accommodation. Employers should proceed with caution when considering any adverse employment action against an employee suspected of lying about their religious beliefs, especially if at one point they appeared to be sincerely held.
Although the federal government has pressured employers to mandate the Covid-19 vaccine, employers still have an obligation under Title VII to accommodate workers who have a sincerely held religious belief or practice that conflicts with vaccination. As a best practice, employers should avoid infringing upon employees’ religious protections and engage with them on a case-by-case basis to determine what accommodations would be most effective to facilitate a safe and productive work environment.