Mandatory Employee Vaccination Rules Present Challenges when Considering Religious Exceptions to the Rule.
As we reported earlier (see the KRCL blog post, here), the Occupational Safety and Health Administration ("OSHA") is in the process of developing an "emergency" temporary standard, requiring employers with more than 100 employees to mandate that their employees be fully vaccinated or, if the employee is excused from the mandate, to produce a negative COVID-19 test at least once per week. Although it is not clear when OSHA's temporary rule will be issued (and there will likely be several state challenges to the anticipated rule), a number of employers are already implementing mandatory vaccine policies in the workplace.
Accommodations from the Vaccine Mandate?
Whether an employer decides to have a mandatory vaccine policy (or is required to do so by OSHA), it will have to manage employee requests to be excused for those requirements. A doctor's note for an exception for medical reasons may be one way an employee seeks to get around a vaccination rule, and experienced human resources professionals generally have a considerable understanding of dealing with the accommodation rules under the Americans with Disabilities Act.2 The more difficult consideration may be, however, that there is an increasing number of employees objecting to vaccine mandates on religious grounds, and most employers are less familiar with the rules on this ground.
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 impose more than a de minimis cost or burden on the employer's business operation.
The EEOC Guidance states that employers should accept (and accommodate) an employee's claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption.3
The 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.4
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.5 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:
- Whether the employee previously acted in a manner inconsistent with the professed belief;
- Whether the employee's requested accommodation or exception is likely sought for personal or non-religious reasons;
- 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
- Whether the employer has reason to believe the accommodation is sought for non-religious reasons.
When an employer has an objective basis for questioning an allegedly "sincerely held" belief, an employer may request further information to make an informed decision.6 As one can see, shifting through these factors may be complex and subject to differing analyses. Thus, employers should document the inquiries and collect this information on a standardized intake form to document the discussion.
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.7
As noted, a template questionnaire used for all employees is recommended to avoid any potential allegations of harassment or disparate treatment.
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."8
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.9 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.
Employers Must Take Careful Steps
In sum, employers will need to evaluate carefully an employee's requested accommodation, and ensure proper documentation of any inquiry into an employee's religious beliefs. Further, employers must weigh an employee's religious belief with the potential undue hardship to the employer by impairing workplace safety and putting other employees at risk for contracting or spreading COVID-19. Finally, further complicating an employer's duty to weigh the risk is the newly enacted Pandemic Liability Act. The law,10 passed during the most recent 87th Texas Legislative Session, holds that employers can be liable for workplace exposures when the employer does not comply with set guidelines and requirements. Thus, OSHA regulations may make this review of vaccination mandates particularly difficult for employers, if the regulations are not followed to a "T," and an exposure occurs, leading to possible liability under Texas law.
Footnotes
1 Andrea Johnson and Dennis Duffy provided some assistance.
2 See the EEOC's "Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA" guidance here.
3 See the EEOC's "Questions and Answers: Religious Discrimination in the Workplace" guidance here.
4 See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972). [1] See Ikossi–Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 551 (5th Cir.2009).
5 See Ikossi–Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 551 (5th Cir.2009).
6 See the EEOC's "Questions and Answers: Religious Discrimination in the Workplace" guidance here.
7 See the EEOC's "Section 12: Religious Discrimination" here.
8 See Davis v. Fort Bend County, 765 F.3d 480, 485 (5th Cir. 2014).
9 Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495, 499 n. 9 (5th Cir.2001)).
10 Codified as Tex. Civ. Prac. & Rem. Code § 148.003.
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