Leslie A. Farber
Employers Are Not Obligated to Grant Religious Exemptions
The rise in COVD-19 cases during the summer and early fall has resulted in a dramatic increase in employer-imposed vaccine mandates to help protect workers from the virus. From large corporations to small private employers to federal and state government agencies, more and more employers are ordering workers to get vaccinated against COVID-19 – with or without the option of getting tested regularly instead.
As the number of vaccine mandates grows, so does the number of employees who are applying for religious exemptions to avoid complying with them. In Washington, D.C., more than 400 fire and emergency medical workers applied for religious exemptions to the city's vaccine mandate. In Los Angeles, roughly a quarter of the police department is seeking religious exemptions. And in Washington state, a reported 3,800 state workers have requested religious exemptions to the mandate that workers be fully vaccinated or lose their jobs.
The right to request religious exemptions stems from Title VII of the Civil Rights Act of 1964, which protects workers from discrimination on the basis of religion, among other things. The Equal Employment Opportunity Commission requires employers to provide reasonable accommodations for workers who have “sincerely held” religious beliefs. Whether an employer grants a religious exemption to a vaccination requirement is generally based on a judgment of the employee's religious belief, and whether the accommodation poses an undue hardship on the employer or presents a direct threat to the health and safety of others.
Prior to the pandemic, employers asked few questions around an employee’s religious beliefs if, for instance, they requested to not work on a holy day. But the risks posed by the pandemic have prompted employers to ask more probing questions to determine whether an employee's religious belief is sincere. Federal guidance and previous court decisions allow employers to consider a number of factors when assessing the sincerity of a religious belief, including whether the employee's behavior is inconsistent with the professed belief; the timing of the request is suspect; and if it is likely the benefit of the accommodation is being sought for secular reasons.
Another factor to be considered is that no major religion has come out in opposition to the COVID-19 vaccines, and Jehovah's Witnesses, Christian Scientists and the Catholic Church have all issued statements saying that their religion does not prohibit members from receiving the vaccine. However, an individual's "sincerely held" religious belief does not have to be part of an organized-religion mandate to be considered a valid reason for exemption from getting the vaccine.
If the employer determines the employee’s belief is not sincere, it may deny the exemption request. If the request is granted, the employer decides what the reasonable accommodation will be – which may not necessarily be the accommodation requested by the employee.
Some employers are taking a hard line. The NBA recently denied a religious exemption request from Golden State Warriors forward Andrew Wiggins, who will not play any home games in San Francisco – which has a vaccine mandate for large indoor events – until he fulfills the city's vaccination requirements. United Airlines, which imposed a vaccine mandate in October, has granted religious exemptions to a small number of employees – but the reasonable accommodation is to put the employees on indefinite unpaid leave without regular benefits. Several United employees have sued, saying unpaid leave is not a reasonable accommodation.
So far, no pattern has emerged in terms of how cases challenging mandates around the country are being decided. A federal judge in Louisiana ruled that a private university that uses public facilities cannot require vaccinations. However, when a group of students sued Indiana University over its mandate, Supreme Court Justice Amy Coney Barrett rejected their appeal.
There is was a recent federal court case in Maine where they there is a vaccine mandate and no exemption allowed for religion (only for documented medical risk). The US Supreme Court temporarily rejected a challenge to this law.
How many of these religious exemption requests will be approved is unknown. Ultimately, religious exemptions come down to an employee's personal belief and whether an employer can find a reasonable accommodation. If you are an employer or an employee with questions or concerns regarding COVID-19 vaccine mandates, please contact us at 973-707-3322 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.