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In this edition of Ask General Counsel, we provide an overview of religious exemptions to mandatory COVID-19 vaccination policies. This is an issue that employers and employees are struggling to understand and determine their respective rights. This article is intended as a brief overview of the topic. For additional information, please contact us at firstname.lastname@example.org or visit www.gcpc.com.
Title VII of the Civil Rights Act of 1964 protects workers from employment discrimination based on their race, color, religion, sex, national origin or protected activity. Under Title VII, an employer is prohibited from discriminating because of religion in hiring, promotion, discharge, compensation or other “terms, conditions or privileges” of employment. “Religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that it is unable to reasonably accommodate and employee without undue hardship on the conduct of the employer’s business.
Sincerely Held Religious Beliefs and Reasonable Accommodations
Title VII requires employers to accommodate religious beliefs that are “sincerely held.” According to the Equal Employment Opportunity Commission (EEOC), whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many Title VII religious claims and is “generally presumed or easily established.” Courts restrict their inquiries to whether or not the religious belief system is sincerely held and do not review the motives or reasons for holding the belief.
Under Title VII, employers are required to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, once on notice, unless providing the accommodation would create an undue hardship.
While the Supreme Court hasn’t fully defined what constitutes an “undue hardship,” the court has found that it requires a showing that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden. Undue hardship may consider monetary costs, as well as safety risks. Ultimately, the reasonableness of an accommodation is a fact-specific determination, decided on a case-by-case basis.
Whether an employee’s religious belief is “sincerely held” is largely a matter of individual credibility. Factors that might undermine an employee’s credibility include: whether the employee has behaved in a manner markedly inconsistent with the professed belief, whether the accommodation sought is likely to be sought for secular reasons, whether the timing of the request renders it suspect, and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
While whether or not an employee has a sincerely held religious belief, observance or practice is rarely at issue in religious discrimination cases, COVID-19 vaccination policies may create more questions around this area than usual.
Typically, sincerely held beliefs are easily established, but personal beliefs are not entitled to exemptions. Sincerely held beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” but do not include political or philosophical beliefs. Regarding the coronavirus vaccine, there may be a question as to whether employees refuse to get the vaccination for personal or religious reasons.
A reason an employee may request a religious exemption from COVID-19 vaccination requirements is based on the use of fetal cells in the production or research phases of the vaccination creation process. Other common vaccines not related to COVID-19 also use fetal cells. While a person’s willingness to get a prior vaccine that uses fetal cells and refusal to get the COVID-19 vaccine for use of fetal cells can be a consideration when determining the credibility of an employee and their sincerely held belief, it’s important to keep in mind that an individual’s beliefs, or degree of adherence, can change over time.
In the context of COVID-19, the most common accommodation request will likely be an exemption from an employer’s mandatory vaccine policy. It’s important for employers to engage in the interactive process with employees to determine what, if any, accommodations are reasonable and don’t cause undue hardship on the employer.
If the employer chooses to grant a religious exemption to the vaccination policy, reasonable accommodations may include requiring the employee to wear a mask or get regular COVID-19 testing or to practice social distancing, reassigning the employee to another position or remote work, or placing the employee on unpaid leave.
This is a difficult legal issue that is likely to be litigated. It is also difficult because of the highly politicized nature of the COVID-19 vaccine. As an employee, be prepared to offer evidence that your objection to vaccines is in accordance with a sincerely held religious belief. And, for employers, establish a policy, provide procedures for employees to request accommodation, and have standardized criteria to make decisions, on a case-by-case basis.
For additional guidance about COVID-19 vaccination policies and religious exemptions, contact the employment law experts at General Counsel, P.C. today at 703-991-7973 or at email@example.com.