With the coronavirus pandemic ongoing and new cases still being contracted due to new variants, many employers are considering or have already implemented mandatory vaccination policies. These policies bring up questions about what rights employers have regarding employees who refuse to get the vaccine. Since cases regarding vaccination policies are just starting to be heard by courts around the nation, the guidance around this topic is still new and uncertain. However, the few cases that have been heard by courts are favorable to employers and mandatory vaccination requirements.
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 an employee without undue hardship on the conduct of the employer’s business. These protections apply whether the religious beliefs or practices in question are common or non-traditional, and regardless of whether they are recognized by any organized religion. The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s “own scheme of things, religious.”
Title VII religious discrimination may include: denying a needed reasonable accommodation sought for an applicant’s or employee’s sincerely held religious beliefs, observances, or practices if an accommodation will not impose an undue hardship on the conduct of the business; and retaliating against an applicant or employee who has opposed discrimination on the basis of religion, or participated in any manner in an investigation, proceeding, or hearing regarding discrimination on the basis of religion. Title VII also prohibits employers from disciplining or discharging employees because of their religion.
Sincerely Held Religious Beliefs and Reasonable Accommodations
Title VII requires employers to accommodate religious beliefs that are “sincerely held.” According to the 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. Typically, the employer’s duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement that creates a conflict so that the employee or applicant will be able to observe or practice his or her religion. 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. However, none of these factors is dispositive. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs may change over time, and an employee’s newly adopted or inconsistently observed religious practice may still be sincerely held.
It’s important for employers to keep in mind that an accommodation does not have to be limited to what is requested by the employee and that, under some circumstances, no accommodation may be reasonable to offer without causing undue hardship. If an alternative accommodation to one requested by an employee is offered and the employee chooses not to accept the accommodation, and all other alternative accommodations would cause an undue hardship on the employer, the employer can decide to terminate the employment relationship.
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.
However, employers may want to be selective when choosing to challenge an accommodation request. Employers should generally assume that an employee’s request for an accommodation is based on a sincerely held belief unless there is an objective basis for questioning the sincerity of the belief. A common 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 utilizes 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. Thus, an employee’s newly adopted or inconsistently observed religious practice may still be sincerely held.
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, continue social distancing, reassignment to another position or remote work, or unpaid leave. Employers may also choose a combination of these options, depending on what is the best fit for the employer and employee in the specific situation.
Guidance for Employers
Any mandatory vaccination policy put in place by an employer should include an exemption for sincerely held religious beliefs under Title VII. As soon as an employer is on notice of an employee’s sincerely held religious belief and need for an accommodation, the employer should begin the interactive process where employer and employee cooperate to share information and determine what accommodation, if any, is reasonable under the circumstances. An employee doesn’t need to specifically state that he has a sincerely held religious belief or use the word “accommodation” for an employer to be on notice.
This interactive process should be documented in writing and include a reasonable accommodation request form, as well as documentation about any accommodations offered and whether or not they were accepted or rejected.
Typically, employers should assume that an employee’s request for an accommodation is based on a sincerely held belief, but the employer can request additional information if it has an objective basis for questioning the sincerity of the belief. Additional information may include religious materials describing the belief or written statements from third parties, such as religious leaders or other practitioners. However, employers should be cautious when requesting verification of an employee’s belief to avoid potential unnecessary litigation.
While whether a specific accommodation is reasonable is decided on a case-by-case basis, it’s important that the decision-making process is consistent, to avoid claims of discrimination. Best practices may include having a designated reviewer (or a few reviewers for larger organizations that receive frequent requests), knowledgeable in state and federal employment laws responsible for making all accommodation decisions so that the process is completed fairly and properly.
Employers should continue to monitor guidance from state and local governments to ensure they stay in compliance with any changing recommendations or regulations. Attorneys at GCPC will continue to monitor recommendations and legislation. For additional guidance about COVID-19 vaccination policies and religious exemptions, contact the employment law experts at General Counsel, PC today at 703-991-7973.