Tuesday, August 10, 2021

Coronavirus Update 8–10–2021: Vaccines and religions accommodation requests

"I need an accommodation for your mandatory vaccination policy. The vaccine is against my religion."

As more employers roll out vaccine mandates, more will be faced with this exact scenario.

Title VII requires an employer to reasonably accommodate an employee's sincerely held religious beliefs, practices, or observances, as long as the accommodation does not impose an undue hardship. 

Two, and only two, religions, however, actually support people not getting vaccinated as a tenet of the religion — Christian Scientists and the Dutch Reformed Church. There are an estimated 106,000 Christian Scientists in the United States, and 194,000 members of the Reformed Church. That's a tidy total of 300,000 potential religious objectors based on their religion's actual teachings, period (or only 0.25% of all employees). But that minuscule number does not end the inquiry.

The EEOC does not limit its definition of a religious belief, practice, or observance to those that are espoused by an actual religion. The EEOC's definition also includes moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. Moreover, per the EEOC the fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a protected religious belief of the employee. 

Thus, an employee very well can claim a religious exception even if s/he is not a Christian Scientist or member of the Reformed Church, as long as the employee states it is against their religious beliefs to be vaccinated. Moreover, it's potentially dangerous to question the sincerity of an employee's religious beliefs unless you have an objective basis to do so. (Just ask Consol Energy, which lost big when it denied an accommodation to an employee who claimed its biometric hand scanner, used to track time and attendance, violated his religion because it imparted the Mark of the Beast upon him if he used it.)

Further, even if you have reason to doubt the sincerity of an employee's religious beliefs to remain unvaxxed, all you can do is ask the employee to provide information to address your reasonable doubts. Per the EEOC, "That information need not, however, take any specific form [and] the employee's own first-hand explanation may be sufficient." If the employee takes the extra step and provides a note from his or her clergy, it's game over. Thus, it's safe to conclude that in almost all cases, if an employee requests a religious accommodation to a mandatory vaccination policy, you should grant it or face significant legal risk.

That conclusion, however, is not the end of this story. All an employer has to do is offer the employee a reasonable accommodation, which need not be the employee's preferred accommodation. Potential accommodations include, but are not limited to, continued masking while at work, a change in work location or shift to minimize contact with others, remote work, or even an unpaid leave of absence. 

The latter, while the harshest, will also quickly flush out the legitimate from the illegitimate religious objectors. It also will create the least amount of friction with your vaccinated employees, who might resent the unvaxxed who get to continue to work from home as a religious accommodation.

Bottom line: with Title VII's definition of "religion" as broad as it is, it's just not worth the risk and the cost to challenge the legitimacy or sincerity of the beliefs of an accommodation requesting employee, especially when the solution is often so simple to provide.