Religious Accommodation Challenges for COVID-19 Immunization Policies—Lessons for Employers from Preliminary Court Rulings | Foley & Lardner LLP



Whether to protect the health and safety of their workplaces, to comply with government requirements where applicable, or a combination of the two, many employers have adopted mandatory COVID-19 vaccination policies. Faced with the consequences of refusing to get vaccinated, a number of workers are now bringing religious discrimination lawsuits against their employers for failing to uphold their anti-vaccine religious beliefs. Court decisions from the preliminary stages of these cases provide key lessons about navigating the process of religious accommodation, whether in the context of vaccination policies or otherwise.

Where are the courts on the issue of religious accommodation?

Under Title VII and many analogous state laws, an employer must provide religious accommodations to an employee with an honest religious belief or practice that conflicts with an employment requirement – unless an accommodation requires undue hardship to the employer. (Some states go further and provide exemptions for personal beliefs or personal conscience.) An accommodation is undue hardship if it imposes more than a de minimis a cost or burden to the employer. This is a lower standard than undue hardship under the Americans with Disabilities Act (ADA), which requires showing that the accommodation would impose a significant hardship or expense.

In these early religious accommodation rulings on COVID-19 vaccination, employees sought preliminary injunctions to temporarily prevent employers from enforcing mandatory COVID-19 vaccination policies while litigation is pending. Classes. Courts so far have been nearly unanimous in denying preliminary injunctions, concluding that employers are likely to prevail on the merits of the cases.

The first key question is whether the employee can prove religious discrimination, which requires proving that a particular belief or practice is religious. While some courts have found that particular opposition to the COVID-19 vaccine is religious, others have found that similar opposition is merely personal. Whether opposition to the vaccine is part of an employee’s sincere religious belief is a very fact-dependent analysis. In many cases, however, this analysis is unnecessary because employers have not challenged the beliefs at issue.

Regardless of whether the employee can prove religious discrimination, the cases largely revolve around whether accommodations requested by workers would likely impose undue hardship on employers. So far, the courts generally agree that they do.

These proposed accommodations typically include mandatory masking, mandatory testing, and remote working. Mandatory masking and testing of unvaccinated employees would force employers to spend funds on surveillance and testing, and put other employees and customers at higher risk of transmission, according to the courts. Remote work, especially for customer-facing roles, would require employers to modify their operations.

Best Practices for Handling Religious Accommodation Requests

It is important to remember that these cases are in the preliminary stages and final decisions at later stages of litigation may differ. Additionally, most of these early cases involve either airline employees or healthcare workers, where remote work is likely not an option and the risk of transmission is particularly high. It is unclear at this early stage whether the courts will find the proposed accommodations impose an undue hardship on employers in other industries. Courts could find that masking, testing and remote working can be implemented in other industries more easily and with less risk of transmission – and therefore impose minimal burden or cost on employers in these contexts. Nonetheless, these cases provide important reminders of best practices when it comes to navigating religious accommodations, particularly with respect to mandatory vaccination policies:

  • Develop a coherent COVID-19 vaccination policy. While employers are not required to provide religious accommodation to every employee who requests it, employers must apply mandatory COVID-19 vaccination policies consistently and uniformly to all accommodation requests. For example, an employer should be careful when requesting backup documents from one employee and not another.
  • Communicate the policy and process for requesting accommodation to all employees. Ensure that employees are informed in advance of any change in requirements and are informed of the process by which they can request an accommodation. A common application form can be used.
  • Review accommodation requests on an individual basis. Employers should consider each request for religious accommodation based on the specific context of the request. The simplest approach is to assume that a request for religious accommodation is based on a sincere belief or practice. The employer may, however, request explanations or limited evidence on how the religious belief or practice conflicts with the COVID-19 vaccination policy.
    • The case-by-case analysis should also be applied to determine whether the accommodation request would impose an undue hardship on the employer. According to the EEOC, the employer may consider the type of workplace, the nature of the employees’ duties, the location where the employee must or can perform their duties, the number of fully immunized employees, the number of employees and non-employees who may enter the workplace, the number of employees who will require special accommodation and whether the employee has close contact with other employees or members of the public.
    • The employer may also consider the cumulative the cost or burden of providing accommodations to other employees. For example, if accepting work-from-home applications ultimately meant that no one would be around to fill a public-facing position, that is a factor that can be taken into account, although it helps a the employee to do so would not be particularly troublesome.
  • Document all requests for religious accommodation. Be sure to keep records of accommodation requests, supporting documentation, communications with employees, and the internal review process. An employer who denies a request for religious accommodation should be prepared to demonstrate how the requested accommodation would impose an undue hardship.

Remember that an employer is not required to provide the employee’s preferred accommodation if there is more than one reasonable accommodation – and need not provide any accommodation at all if it would require more than a minimal cost or burden to the employer.

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