If you are an employer requiring the COVID-19 vaccine for employees returning to the office, you have the important task of abiding by an interactive process when handling the imminent accommodation requests by employees who cannot receive the vaccine. Currently, there are two legally recognized exceptions from mandatory vaccines for employees: disability-related reasons and sincerely held religious beliefs. While there may be a healthy balance of exemption requests premised on both of these issues, this guide specifically focuses on some frequently asked questions by employers fielding requests based on a sincerely held religious belief, observance, or practice. At the federal level, Title VII of the Civil Rights Act mandates that employers must make reasonable accommodations for an employee's religious beliefs, as long as the accommodation does not impose an undue hardship on the employer. Some states have different and/or more expansive laws for this particular exemption.
1. What should our mandatory vaccination policy say with regard to the religious exemption?
The policy distributed to employees should reference the religious exemption and how it provides an exception to the mandatory vaccination policy, and include any relevant definitions. Specifically, the policy can explain that a sincerely held religious belief is a belief that can be either theistic, or a moral and/or ethical belief as to what is right and wrong, but both are acceptable if they are sincerely held. The policy should also state the employer's process for handling religious exception requests and plainly explain that the process is one that is interactive between the employee and the human resources department (HR Department). The results of this process will be considered, analyzed, and determined on a case-by-case basis by a reviewer, who should be named in the policy.
Importantly, the policy should inform employees that the law requires an employer to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause an undue burden on the operations of the employer's business. For example, an employer does not have to accommodate an employee's religious beliefs if the accommodation is costly, infringes on other employees' job rights or benefits, compromises workplace safety, decreases workplace efficiency, or requires other employees to do more than their share of potentially hazardous or burdensome work.
2. How should employees submit their requests?
The employer is responsible for engaging in the interactive process as soon as it learns that an employee needs an accommodation. The employee does not have to make this request in writing, nor specifically state that he or she has a sincerely held religious belief requiring an accommodation. Every time an employee indicates he or she is having a problem at work related to his or her sincerely held religious belief, the employer should recognize this as an accommodation request. Once the employer is aware of the employee's need for an accommodation, it is responsible for making a good faith effort to communicate with the employee about the accommodation. Employees also should be provided a form to confirm their request in writing and provide additional details as necessary. The form should request information relating to the accommodation request and include a certification from the employee that the statements, documents, and information provided to the employer are true and accurate. This form should be kept by the HR Department in the employee's personnel file.
3. Can we request other supporting documents?
The employer should normally presume the employee's request for religious accommodation is sincerely held. However, if there is an objective basis for questioning the employee's sincerity, employers can request documents to be used in the review process to further their assessment of the employee's sincerely held religious belief. Types of documents that an employer can request include:
- Statements and explanations from the employee that discuss the nature and tenets of his or her asserted beliefs and information about when, where, and how they follow the practice or belief
- Written religious materials describing the religious belief or practice
- Written statements or other documents from third parties, such as religious leaders, practitioners, or others with whom the employee has discussed his or her beliefs, or who have observed the employee's past adherence
4. Who should make the ultimate determination about whether to grant the exemption?
The question of whether an individual's belief is acceptable and sincerely held is an issue of an individual's credibility. Accordingly, the assessment of each employee's request for an exemption will have to be reviewed on a case-by-case basis. Consistency in the decision-making process is crucial to avoid claims of bias and discrimination. A single reviewer, preferably in the HR Department, who is well versed in applicable federal laws, state laws, and EEOC (Equal Employment Opportunity Commission) guidance, is the most effective way to ensure that the assessment is done properly and without any indicia of discrimination. Larger employers may not find this to be feasible, given the number of exemption requests they are bound to receive; however, if an employer intends to use a group of decision-makers, the group should be limited to a few people, and the employer should request this information from employees well in advance of the employees' return to office to ensure that the decisions are made in a timely manner.
5. What should the reviewer(s) consider?
A reviewer should have two questions in mind: Is this an acceptable religion? And is this religious belief sincerely held? When considering whether the individual's belief is an acceptable religion, the reviewer should be aware that religion, according to the law and policy, includes not only traditional faiths, but also faiths that are new, uncommon, or informal, or have a small number of practitioners, and some that may seem illogical or even unreasonable to others. Religious beliefs also do not have to be theistic but can be non-theistic, strongly held moral or ethical beliefs. Beliefs based on social, political, or economic philosophies, as well as mere personal preferences, are not considered religious beliefs under federal law.
The next consideration is whether this belief is sincerely held by the employee. Some items to consider in making this determination are how recently the employee has subscribed to this faith; whether the employee's past practices deviated from the followed tenets of his or her belief; and whether there is another reason to believe the request is not being sought for religious reasons. The reviewer(s) should take a holistic approach, as not one of these considerations are dispositive. The collection of documents listed above should be used to help assess the employee's sincerity.
6. Is there anything else we should consider?
Because the current COVID-19 vaccinations are approved through the emergency authorization only, there may be questions regarding an employer's ability to mandate the vaccine. However, based on recent federal guidance, particularly the EEOC's guidance, and court decisions in some jurisdictions, employers are likely on firm legal ground in mandating the vaccine at this point. Operating an interactive accommodation request process is crucial in limiting potential litigation. In furtherance of this, employers should follow these abiding principles:
- Presume a religious belief to be sincerely held, then be selective and cautious when requesting further verification and documentation. Avoid a fishing expedition to reduce the chances of claims of discrimination, harassment, or intimidation
- Be cognizant that religious beliefs are not static and are susceptible to change over the course of a person's life
- Remember that the fact that an individual is not a frequent observer of his or her faith or had not previously made his or her faith public does not necessarily limit its sincerity
- An accommodation does not have to be limited to what is requested by the employee. If the accommodation is legitimate and non-retaliatory, there is a wide range of potential accommodations at the employer's disposal. Should the employee elect not to accept the accommodation offered, and all other alternative accommodations would cause an undue burden, the employer can part ways with the employee
Employers should review their current protocols for processing religious exceptions for COVID-19 vaccinations and update them as necessary. We encourage employers to review the webinar "Pros and Cons of Mandatory COVID-19 Vaccinations in the Workplace" and its accompanying materials. Employers with any questions about their protocols regarding the religious exception from mandatory COVID-19 vaccinations should feel free to contact any member of Venable's Labor and Employment Group.