Although the Occupational Safety and Health Administration (OSHA) has withdrawn its COVID-19 Vaccination and Testing Emergency Temporary Standard following the Supreme Court’s stay of the requirement that employers with over 100 employees require weekly testing or COVID-19 vaccines for their employees, a significant number of employers—either voluntarily or in response to some other governmental obligation—have adopted a requirement that their employees be vaccinated against the COVID-19 virus.
Whenever an employee asserts that a work rule, such as a vaccine requirement or any other condition of employment, conflicts with his or her religious beliefs, Title VII of the Civil Rights Act of 1964 requires that the employer make a “reasonable accommodation” of the religious needs of the employee, as long as the accommodation does not impose an “undue hardship” on the conduct of the business.
Employers that require COVID-19 vaccines of their employees may be faced with employees’ religious objections to taking the COVID-19 vaccine. Employees may also assert religious objections to other vaccines, such an annual flu shot.
When faced with such issues, there are several issues an employer must confront in an interactive process, and addressing those topics typically requires the employer to seek information from the employee in order to assess the request and the possibility of a reasonable accommodation. Employers should usually cover four main areas.
Clarify the Issue
First, employers should clarify which work requirements conflict with the employee’s sincerely held religious beliefs. Determining what work requirements are at issue will help ensure that the interactive process addresses all of the potential conflicts between a work rule and an employee’s religious beliefs.
Evaluate the Sincerity of the Belief
Second, employers can ask about the nature of the employee’s sincerely held religious belief. If an employer has an objective basis to question either the religious nature or the sincerity of a belief, the employer may make a limited inquiry into those matters to evaluate their sincerity.
Determining whether a religious belief is sincerely held is largely a matter of credibility, so employers should have supportable grounds for concluding that a religious belief is not sincerely held. The EEOC has counseled employers that whether the employee has previously acted in a manner inconsistent with the professed belief may be relevant, but also that employees need not be scrupulous in their observance and that an individual’s beliefs—or degree of adherence—may change over time. Some other factors that may suggest that a belief is not sincerely held include whether the timing of the request is suspicious in that it follows an earlier request for the same accommodation for non-religious reasons or whether there are strong non-religious reasons for the request.
Determine a Possible Accommodation
Third, employers may wish to ask employees what accommodation they seek and what some potential alternative accommodation might be. While an employee may be entitled to an accommodation, he or she is not entitled to the accommodation of his or her choosing, if the accommodation the employee seeks creates an undue burden on the employer or another reasonable accommodation would address the employee’s religious belief.
When it comes to issues of exemptions from vaccine mandates, particular situations relating to the workplace and the needs of the employer will be important. Some accommodations might be possible in some situations, but not in others, depending on factors such as whether the employee works outdoor or indoors, or in a group or alone. Some possible reasonable accommodation that might be worth considering include having the employee wear a face mask at all possible times, working at a social distance from others, working a modified shift or remotely, or accepting a reassignment to a different position.
Evaluate Any Undue Hardship
And because the duty to make a reasonable accommodation is qualified by the fact that employers need not incur an undue hardship on the conduct of their business, employers should evaluate the impact of allowing vaccine exemptions. Again, particular situations relating to the workplace and needs of the employer will be important, but factors that can influence the burden on an employer of allowing a vaccine exemption could include the proportion of employees in the workplace who already are partially or fully vaccinated, the proportion of employees who seek an exemption of some kind, and the extent of employee contact with non-employees, as well as the risk of the spread of COVID-19 to other employees or to the public.
For questions about how you or your business may be impacted or for help with religious accommodations, please contact Scott McElhaney or any Jackson Walker attorney.
Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.