For those in the Sacramento area, you may have seen large “Destiny” signs overlooking State Route 65 north of Interstate 80. A news article last month suggested that this church is where go for COVID-19 vaccine exemption letters. Now that President Biden plans to use the emergency powers of the Occupational Safety and Health Administration to force vaccinations on around 100 million employees, the problem is even bigger.
With the rising tide of mandates, many employers are faced with a pressing question: How do employers deal with employee requests for religious exemptions from vaccination mandates, with or without letters written by religious leaders?
The answer has two parts: first, what technically qualifies for a religious exemption, and second, how should employers practically handle requests for religious exemptions from vaccination mandates. Along the way, I’ll discuss the effect of a “pastor’s note” like those shown in the article above.
1. What sort of religious belief or religious practice qualifies for a religious exemption?
A religious exemption is a type (or part) of “reasonable accommodation”. For California employers, federal and state laws require reasonable accommodations for the “genuine” religious beliefs and practices of employees, which may mean granting religious exemptions to employer policies or varying duties in certain areas. circumstances. An employee can bring an action for discrimination, for failure to engage in an interactive process or for failure to accommodate under one or both laws if there is no religious exemption where a such exemption is appropriate.
For federal law, Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment on the basis of religion. As the EEOC summarizes, this means that “[t]The law prohibits discrimination with respect to any aspect of employment, including hiring, firing, pay, assignments, promotions, dismissals, training, benefits and any other condition of employment. .
According to California law, the Fair Employment and Housing Act (“FEHA”) prohibits the same type of discrimination and harassment on the basis of “religious belief”.
Despite the different language, these protections are more or less identical.
When an employee requests accommodation to avoid an employment obligation or to circumvent an employer’s policy, the employer must determine two things: a) whether the employee’s good faith belief or religious practice conflicts with an employment obligation; and (b) whether the adaptation to religious belief or practice would result in “undue hardship” on the employer.
a. What counts as an authentic religious belief or practice? (And is a note from the pastor helpful?)
An employee does not need a note from a religious leader to establish a bona fide religious belief or practice. In the words of the EEOC, a religious belief should be “generally assumed or readily established”. In fact, no one else in the world needs to have the same belief or perform the same practice, so it is not technically important that the official principles of the religion, organization or the employee’s religious institution, or the employee’s own religious leader espouses the principles of the employee. declared religious belief. The employee does not even have to believe in a deity for their belief to be considered “religious,” although federal courts generally go further than California courts to treat secular beliefs as “religious.” Nor do religious beliefs or practices need to be logical, consistent, or understandable.
Here are a few examples beyond typical religious holidays or days of rest that illustrate how broad the definition of a religious belief or practice can be:
- Obligation to wear headgear
- Prohibition on wearing pants or short skirts
- Obligation to wear certain hairstyles or facial hair
- Prohibition on covering tattoos
On the flip side, at least in California courts, veganism has not been accepted as a sufficient religious credo to relieve a new employee of the requirement to obtain a mumps vaccine (which is or has apparently been grown in chicken embryos). The court in the veganism case noted, however, that such beliefs could qualify as religious if they were treated more as a religion by the employee. It is also far from a safe bet that a federal court would exclude such beliefs from the federal definition of “religion.”
Given the fairly broad standards of what constitutes a religious belief or practice, a letter from a religious leader, such as the pastor in the above article, likely helps establish a good faith religious belief or practice, for several reasons. First, a letter from a religious leader can serve as a religious principle, since most major religions do not have specific anti-vaccine principles. Second, most religions that have religious leaders also have principles directing adherents to follow the teaching or leadership of those religious leaders. This adds additional religious belief to support an anti-vaccine belief. Finally, while religious beliefs do not need to be constant or consistently adhered to, a letter from a religious leader can help explain a change in position that could be seen as evidence of insincerity. For example, if the employee requesting the exemption has a complete immunization record, a letter from a religious leader may justify the new belief.
Needless to say, with or without a pastor’s note, challenging the sincerity of an employee’s asserted religious belief will be difficult in most situations. Only when employers have strong evidence of insincerity – like the employee’s own social media posts bragging about his intention to evade vaccine requirements by claiming a religious exemption. which is not in good faith – which employers should consider rejecting. Or, if the employer later learns that the employee lied about his or her sincere religious beliefs, the employer should treat the situation as if it were any other misrepresentation by an employee, with possible disciplinary action. go until dismissal. But, employers should exercise caution and conduct a proper investigation before sanctioning on this basis.
Government agencies acting under state laws and outside the role of the employer may have more leeway. (See, for example, a University of Massachusetts administrator rejecting a student’s claimed religious belief.) But, for most employers, the biggest consideration will be whether and how to accommodate the belief or the claimed practice.
b. When should employers adjust to an anti-vaccine religious belief or practice?
Employers do not need to accommodate by providing a religious exemption when such accommodation would cause “undue hardship” for the employer. The EEOC sums up the potential forms of undue hardship: “An accommodation can lead to undue hardship if it is costly, compromises workplace safety, decreases the efficiency of the workplace, infringes the rights of other employees or obliges them. other employees to do more than their share of hazardous or arduous work.
These considerations are certainly at play during the COVID-19 pandemic, as employers should have little difficulty showing that unvaccinated individuals pose safety risks to other employees and customers with whom they come in close contact. Many potential accommodations, such as extensive COVID-19 testing or changing employee duties, could be costly or could reduce efficiency or increase the burden on other employees. But, this will need to be a case-by-case determination based on the specific duties of the employee and the surrounding circumstances. Employers should seek legal advice before making decisions about requested accommodation.
2. How should employers practically handle requests for religious exemptions from vaccination mandates?
Two very important things to remember from the start: 1) employers must engage in dialogue with their employees when they request accommodation for religious reasons; and 2) not take adverse action against an employee for requesting religious accommodation (this is called retaliation and it entails legal liability).
When receiving a request, we suggest that you focus on determining the scope of the accommodation requested. For example, does the employee never want to take a COVID-19 vaccine, or is he only opposed to one of the available vaccines or some aspect of a vaccine?
Next, consider the difficulties the employer and other employees would face if the accommodation request were granted and determine what type of accommodation, if any, avoids undue hardship. The emphasis here is on the nature of the work, as well as the availability and relative cost of the measures available to meet the employee’s choice, e.g. weekly testing, additional personal protective equipment, remote working , erection of barriers or other workspace adjustments. Other alternatives may include transfer to a position that does not involve close contact with others or unpaid leave, under the right circumstances, such as the announcement by American Airlines that it will place unvaccinated workers on leave. religious exemptions on indefinite unpaid leave until the pandemic recedes significantly. As mentioned above, such determinations require careful consideration and mismanagement of exemption requests can result in significant liability, so seek the advice of a lawyer.
The legal status of immunization warrants is changing rapidly, so we’ll keep you posted on any major developments here.