The mandatory employee vaccination rules present challenges when considering religious exceptions to the rule.
As we reported earlier (see KRCL blog post, here), the Occupational Safety and Health Administration (“OSHA”) is developing a temporary “emergency” standard, requiring employers to more than 100 employees to require their employees to be fully vaccinated or, if the employee is exempt from the mandate, produce a negative COVID-19 test at least once a week. While it’s not clear when OSHA’s temporary rule will be released (and there will likely be several state challenges to the early rule), a number of employers are already implementing vaccination policies. mandatory in the workplace.
Changes to the Vaccination Mandate?
Whether an employer decides to have a mandatory vaccination policy (or is required to do so by OSHA), they will need to manage employee requests to be excused for those requirements. A doctor’s note for a medical exception can be a way for an employee to bypass a vaccination rule, and experienced human resources professionals generally have a considerable understanding of the coping rules under the Americans with Disabilities. Act.2 The most difficult consideration may be, however, that there are a growing number of employees who oppose vaccination mandates on religious grounds, and most employers are less familiar with the rules on the matter.
The basis of a religious accommodation
Under Title VII, an employer must provide reasonable accommodation to the needs of a claimant or employee sincerely held religious beliefs or practices – or their absence, if an accommodation does not require more than one de minimis the cost or burden on the employer’s business activities.
EEOC guidelines state that employers must accept (and accommodate) an employee’s claim of sincere religious belief unless the employer has an objective basis for refusing the exemption.3
The EEOC defines “religion” broadly. Therefore, an employer must reasonably accommodate not only employees who belong to traditional and organized religions (such as Christianity, Judaism, Islam, or Buddhism), but also those who have new, rare, non-conforming beliefs. not part of a formal church or sect. , subscribed only by a small number of people, or which may appear illogical or unreasonable. Additionally, the EEOC has stated that an employee’s religious belief or practice 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 people adhere to this belief / practice.
However, religious beliefs do not include political or social philosophies or simple personal preferences.4
When processing an employee’s religious exemption / accommodation request, the threshold issue is whether the employee has a “sincere religious belief” that conflicts with fulfilling the mandate of the employee. vaccination.5 So how do employers determine if a religious belief is “sincere”?
Determination of “personal” beliefs versus “religious” beliefs
To determine whether an employee’s objection to an employer’s rule is based on a “sincere religious belief,” triggering the employer’s obligation to consider reasonable accommodation, the EEOC identified the four factors following:
- If the employee has previously acted in a manner inconsistent with the professed belief;
- If the accommodation or exception requested by the employee is probably sought for personal or non-religious reasons;
- If the timing of the employee’s request makes it suspicious or follows a previous request by the employee for the same accommodation for secular reasons; and
- If the employer has reason to believe that the accommodation is sought for non-religious reasons.
When an employer has an objective basis for questioning a supposedly “sincere” belief, an employer may ask for additional information to make an informed decision.6 As can be seen, going through these factors can be complex and require different analyzes. Thus, employers should document inquiries and collect this information on a standard intake form to document the discussion.
Weigh belief: is it sincere or not?
This process may involve serious questioning with the employee, if there are objective doubts, to determine if the expressed belief is “sincere”. These questions may include, for example:
- identification of “religion”;
- when, where and how did the employee adopt “religious practice”;
- whether and to what extent the precepts of the employee’s religion prevent the employee from complying with the employer’s mandate;
- whether the employee has ever refused a vaccine or medication on the same religious basis; and
- whether a religious leader can provide a note or documents confirming 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, during this process, that the employee’s objection to receiving the vaccine is not rooted in “sincere religious belief”, then the employer can apply the policy. compulsory vaccination without accommodation for the employee. This decision could result in termination of the employee’s employment if the employee continues to refuse to be vaccinated (raising the specter of a possible lawsuit and underscoring why it is important to follow a documented process).
On the other hand, if the employee demonstrates a sincere belief, then the employer must consider whether reasonable accommodation is possible, or whether no accommodation is possible because it would result in “undue hardship”.8
In this context, Title VII does not define “undue hardship”. The courts have concluded that there is “undue hardship” as to a religious accommodation when an employer is required to endure “more than one de minimis the cost or burden “on business operations to provide housing. Notably, this is a lower standard for employers to meet than the” undue hardship “defense under the ADA.9 The consideration of occupational safety is relevant to this question. Yet the latter problem may impact some employers or industries, like the food industry, perhaps more than others.
During the pandemic (and outside of this anticipated federal government mandate), possible accommodations have included wearing face masks, transitioning an employee to remote work, or shifting employee duties to minimize stress. ‘exposure. And, the administration will add, through OSHA, it appears, the requirement for regular employee testing.
Employers Must Take Cautious Steps
In summary, employers will need to carefully assess any accommodation requested by an employee and ensure proper documentation of any investigation into an employee’s religious beliefs. Additionally, employers must weigh an employee’s religious belief with the potential undue hardship for the employer by compromising workplace safety and putting other employees at risk of contracting or spreading COVID-19. Finally, the new pandemic liability law further complicates an employer’s duty to weigh the risk. The law,ten past during the last 87e Texas Legislative Session, argues that employers can be held liable for workplace exposures when they fail to comply with established guidelines and requirements. Thus, OSHA regulations can make this review of vaccination mandates particularly difficult for employers, if the regulations are not followed by a “T” and exposure occurs, resulting in possible liability under Texas law.
1 Andrea Johnson and Dennis Duffy provided assistance.
2 See EEOC guidelines on “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA” here.
3 See the EEOC guide “Questions and Answers: Religious Discrimination in the Workplace” here.
4 See Wisconsin v. Yoder, 406 US 205, 216 (1972).  See Ikossi – Anastasiou v. Bd. Of La. State Univ Supervisors., 579 F.3d 546, 551 (5th Cir. 2009).
5 See Ikossi – Anastasiou v. Bd. Of La. State Univ Supervisors., 579 F.3d 546, 551 (5th Cir. 2009).
6 See the EEOC guide “Questions and Answers: Religious Discrimination in the Workplace” here.
7 See 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.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.