10/15/2021 | News release | Distributed by Public on 10/15/2021 07:55
As COVID-19 vaccination mandates continue to increase across the country, employers are legally required to manage, and in some cases accommodate, exemption requests. Presently, there are two legally recognized exceptions from vaccination mandates: (1) Medical exemptions under the Americans with Disabilities Act; and (2) Exemptions based on sincerely held, religious beliefs under Title VII of the Civil Rights Act of 1964 or other State/local laws. Some states have equivalent and/or more expansive laws for these particular exemptions.
Medical exemptions are the clearer of the two to resolve. They are subject to objective medical documentation provided from health care providers. On the other hand, employers have reported an exponential increase in religious accommodation requests seeking exemption from vaccination. However, there is no readily verifiable basis to determine whether an employee's religious objections to mandatory vaccinations are sincere and, thus, legally warranting a workplace accommodation. As such, employers are increasingly asking themselves how can they legally resolve accommodation requests without causing harm to the business.
The EEOC (Equal Employment Opportunity Commission) provides some guidance, stating that religious accommodation requests in response to a vaccination mandate requires employers to provide a reasonable accommodation for employees with sincerely held religious beliefs, practices, or observances that prevent the employee from getting a COVID-19 vaccine unless an accommodation poses an undue hardship to the employer. EEOC guidance further explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Accordingly, employers should engage in the process described below.
Initially, the first step is to determine if the employee is asserting a request based on a sincerely held belief. Given the increased number of claims for religious exemption, employers are questioning the requests and should consider the following:
A number of clients have expressed concern with an increase in exemption requests asserting that COVID-19 vaccines contain fetal product or animal byproduct such as gelatin. This is a novel legal issue with no reported case law to establish a basis for legal advice. Accordingly, we are refraining from providing any recommended advice but instead reporting factors for consideration:
We recommend that clients facing requests asserting these types of claims request that the employee provide documentation from a credible source corroborating their position (i.e., Food and Drug Administration (FDA), Centers for Disease Control and Prevent (CDC) or manufacturer fact sheets). We will continue to monitor pending legal challenges addressing these issues closely and will provide updates when they become available.
This issue is more complicated as the EEOC Guidance allows individuals to maintain a religious exemption even if their beliefs depart from the tenets of the religion. That said, if you have reason to question their assertion, you should ask for further evidence of their history with the faith and evidence of their demonstrated commitment to the tenets they assert.
Even after determining that an employee has a sincerely held religious belief, an employer can refuse to provide an accommodation if it would pose an undue hardship. An accommodation constitutes an undue hardship if it causes more than a minimal burden on the operation of the business. EEOC guidance provides the following as examples of undue hardships:
An accommodation does not have to be limited to what the employee prefers. If the proposed accommodation is reasonable and non-retaliatory, employers can propose any number of viable options (i.e., weekly testing, masks, social distancing, remote work).
Consistency in the decision-making process is critical to avoid claims of discrimination, retaliation, or bias. Accordingly, employers should: