Vaccinations and Religious Accommodations
By Rebecca Bruch, Esq.
We keep hoping we’re going to wake up tomorrow and find out that COVID was just a bad dream or a story from a land far, far away, and long, long ago. Alas, we can hold out hope, but in the meantime, those of you who live in the day-to-day world of human resources have to deal with the latest changes, which sometimes are occurring daily. With the recent vaccination mandates from President Biden, we expect at least 10 million people will be required to get a COVID vaccine. That expansion includes people like federal contractors who otherwise were left to the decisions of their employers. But like all things COVID, we do not have a lot of guidance on what employers can do, must do, and who gets to have a say in the decision. Whether the vaccine mandate comes from a private employer, or a governmental agency, how you implement it can be the difference between successfully defending a lawsuit and having to pay damages and/or reinstate a terminated employee.
At least as of today, the majority opinion of various governmental agencies is that vaccines can be mandated, but an employer must make a reasonable accommodation as long as the accommodation does not impose an undue hardship on the employer. The two most common situations that give rise to objections are based on disability or religion. While neither are simple, the murkier of the two is a claim of a religious exemption. How do you know whether someone claiming a religious exemption is entitled to an exemption or not? Can am employee simply say they belong to the Church of Peanut Butter which does not allow vaccinations, and they get to forego the vaccination? The answer is no.
How do you properly address your employees’ rights, but not simply rely on the “honor system” to carry out your obligations to your other employees to provide a safe and healthy workplace? Here are some suggestions for engaging in a proper interactive process regarding a request for a religious accommodation and still fulfilling your legal obligations to provide a safe and healthy workplace.
- Be sure to have a written policy in place.
Your policy should reference the religious exemption and how it allows for an exception to the mandatory vaccination policy. Be sure to include the relevant definitions. The policy should explain your process for handling religious exception requests and plainly explain that the process is one that is interactive between the employee and human resources. The results are considered on a case-by-case basis. Explain that the company will 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, jeopardizes workplace safety, decreases workplace efficiency, or requires other employees to do more than their share of potentially hazardous or burdensome work.
- Get the request in writing… if you can.
The request does not have to be in writing nor say magic words like, “I have a sincerely held religious belief requiring an accommodation.” Any language that indicates an employee is having a problem at work related to his or her sincerely-held religious belief, should be recognized as an accommodation request. But if you can get the request in writing, it helps in determining precisely what the employee’s issue might be and what kind of an accommodation they might be requesting. Presumably, the request is going to ask to be excused from getting a vaccination. There are some signs that the request just might not have anything to do with a sincerely-held religious belief, but rather, an issue related to politics or skepticism about the safety of the vaccine. It may be a perfectly logical objection, but one which is not recognized under the law. If an employee shows up with a “canned” form that they harvested off of the internet, don’t assume automatically that it reflects poorly on their request, but it should trigger your “spidey sense” about what might be going on. It should trigger further questions. It is okay to ask further questions that go beyond the form. There is nothing wrong with asking the employee to tell you in his or her own words the basis for the objection.
- Delve a little into the depth of the employee’s objection.
A relevant question to help ferret out whether an employee’s objection is sincerely-held might be whether their religion prevents them from getting all vaccines and other medical prevention treatments, or is it limited to COVID vaccines. Without asking what medications an employee takes, you might ask do they object to taking other medications prescribed by their doctor. If the answers to these questions sound something like, “Other vaccines have been tested,” or “I don’t know what’s in the COVID vaccine,” those are not indicators of a religious objection to a mandated vaccine. I’m not saying these conversations are easy to have, and they should avoid getting into a debate about religion. Keep in mind, the process is geared toward determining whether the requested accommodation, not having to have the vaccination, creates an undue hardship for you.
- Don’t be afraid to talk to the employee’s supervisor or coworkers.
Sometimes an employee may have mentioned to coworkers that they plan to try to avoid getting a vaccination by saying they have a religious objection, even if it’s not true. And sometimes other employees who heard such a statement may come to you with the information. If someone comes forward, you are free to ask questions.
- Make sure you have a Plan B.
If you just are not comfortable getting into the weeds with an employee on his or her religion, you can consider an alternative arrangement that still provides a safe and healthy workplace for your other workers. Some alternatives being used by some companies, large and small include:
- Weekly testing at the expense of the employee. But be sure to check if that alternative complies with state or federal regulations. For instance, federal workers and federal contractors cannot opt for weekly testing in lieu of a mandatory vaccination.
- Consider whether a remote workplace is suitable for the employee.
- Consider laying off the employee without pay while the mandatory vaccination policy is in place.
As I have said in my past blogs, new lawsuits are filed everyday challenging these COVID mandates. There are no solid answers. I anticipate that the answers to these dilemmas will come long after COVID is a thing of the past. But that will not protect you from the fallout of what is going on now. You may still have to write the check, long after COVID is a distant memory. So you want to be sure to put yourself in the best position you can when or if the inevitable EEOC complaint or lawsuit lands on your desk.
If you have any questions, or need help with developing policies, you may contact any of the employment lawyers at Lemons, Grundy & Eisenberg.