By Renee Mielnicki, Esquire and Jennifer Price, PHR
As detailed in our previous blog article, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has been directed by President Biden to issue an Emergency Temporary Standard (ETS). The President has asked for an ETS that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. As employers prepare to implement COVID vaccine mandates, questions around religious objections to the vaccine are abundant.
As a refresher, employers are legally permitted (and some will be legally required per the ETS) to mandate that their employees get the COVID vaccine. However, Title VII of the Civil Rights Act will require employers to consider making accommodations for employees who raise religious objections due to a sincerely held religious belief, unless doing so would create an undue hardship. Responding to these objections is complicated and presents risk for employers. An objection based on religion should be considered a request for a reasonable accommodation. Below are a few steps to help reduce the risks of violating federal anti-discrimination laws when responding to these requests.
Determine Whether the Objection is Based upon a Sincerely Held Religious Belief
Determining what constitutes a “sincerely held religious belief” can be complicated. “Religion” under Title VII is not limited to Christianity, Judaism, and Islam. The Equal Employment Opportunity Commission (“EEOC”), which enforces Title VII, uses a very broad definition of “religion” which goes beyond membership in a traditional church and includes both sincerely held moral and ethical beliefs. In its guidance on the topic, the EEOC has said: “Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief.”
Once a vaccine exemption request is made, employers should first ask the employee to put the request for an accommodation in writing. The employee should be asked to explain how the COVID vaccine conflicts with their sincerely held religious beliefs. The law requires the employer assume objections are based on sincerely held religious beliefs unless they have an objective basis to question it. Those bases may appear where the objection is tied to distrust of the vaccine or some philosophical or political view, which are not sincerely held religious beliefs and do not need to be accommodated by employers. Be careful when reviewing the bases for these objections as some employees may have difficulty articulating what their objection is and how it’s tied to religion, especially in writing. In that case, a conversation may be needed to understand what the employee is trying to say.
In addition to our guidance above, the EEOC has identified four factors that can create doubt in an employer’s mind as to the sincerity of the employee’s belief. They include the following:
- Whether the employee has acted in a way that is inconsistent with the claimed belief;
- Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
- Whether the timing of the request is questionable (for example, because it follows closely on the heels of the same employee’s request for the same benefit for different reasons); and
- Whether the employer has other reasons to believe that the employee is seeking the benefit for secular reasons.
While you can have a conversation with your employee about the above factors to determine if their objection is based upon a sincerely held religious belief, you cannot require notes from priests, ministers, rabbis, etc. Not all religions recognized under Title VII are organized which would make obtaining this type of supporting documentation difficult, if not impossible, in some cases.
If the employee’s explanation of their objection to the vaccine seems to fit with the request for a religious accommodation, move on to the next step. If it doesn’t, such as in cases where the reason is tied to fear of side effects, deny it. Your denial should be in writing and explain your reason such as: “the employee stated their objection was tied to fear of side effects, which is a personal reason, rather than related to a sincerely held religious belief.”
Engage in the Interactive Process
If you determine the employee’s objection is based on a sincerely held religious belief, the next step is to engage in what is known as the interactive process. Simply put, this is a conversation between the employer and the employee to determine what accommodation can be made to the vaccine mandate that will not result in an undue hardship to the organization. In other words, the employee doesn’t automatically get a free pass from the requirement to get the vaccine. Employers are entitled to explore other reasonable alternatives such as work from home, distancing, masks and/or weekly testing. To substantiate the employer met their legal duty to engage in this process, employers should document it by asking the employee to complete a reasonable accommodation request form. That form should prompt the employee to document any accommodation they are requesting as an alternative to the vaccine.
Provide A Response to the Request for an Accommodation
Providing a response to the employee’s request is the final step. Before you make your decision, review all the information you have obtained including the request form the employee was asked to provide, any supporting documentation, and the reasonable accommodation form filled out by the employee listing their accommodation choice(s). Once this information has been reviewed, the employer should ask itself: “Are there any reasonable accommodations to the COVID vaccine mandate that can be offered to the employee that would not cause an undue hardship?” Here are a few tips to assist with that evaluation:
- Employers do not have to grant the specific accommodation requested by the employee if there is an effective alternative. For example, the employer may offer the employee masking and weekly COVID testing at the workplace as opposed to the employee’s request to work from home. Make sure to document the accommodation offers you make to the employee and be consistent from employee to employee with your offers and decisions.
- There may be no reasonable alternative to the vaccine mandate for your employee that does not cause an undue hardship. Undue hardships are defined as “more than a de minimis” In addition, hardship can be created by compromising workplace safety. For example, an employee that is required to regularly visit hospitals that require all onsite third parties to be vaccinated may be reasonably denied an accommodation. However, the question of undue hardship is always fact specific. While the previous example may be one where it exists, it may not be a hardship to allow certain office-based employees to work from home as an alternative to the vaccine.
- If all reasonable accommodations would pose an undue hardship, the employer will need to consider an unpaid leave of absence or separation of employment. Consult with a qualified expert though before making one of these decisions.
If you are an employer with questions about any safety, workers’ compensation, or human resources issue, contact East Coast Risk Management by calling 724-864-8745 or emailing us at firstname.lastname@example.org. We will be happy to help!
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