For those in the Sacramento area, you may have seen large “Destiny” signs overhanging State Route 65 north of Interstate 80. A news story last month suggested that this church is the place to go for COVID-19 vaccine exemption letters. Now that President Biden is planning to use the emergency powers of the Occupational Safety and Health Administration to mandate vaccination for an estimated 100 million employees, the issue is even more prominent.
Given the rising tide of mandates, many employers face an urgent question: how do employers handle employee requests for religious exemptions from vaccine mandates, with or without letters written by religious leaders?
The answer has two parts: first, what technically qualifies for a religious exemption, and second, how should employers practically address requests for religious exemptions from vaccine mandates. Along the way, I’ll address the effect of a “pastor’s note” like those shown in the news story above.
- What sort of religious belief or religious practice qualifies for a religious exemption?
A religious exemption is a type of (or a part of) a “reasonable accommodation.” For California employers, both federal and state law require reasonable accommodations for employees’ “sincerely held” religious beliefs and practices, which may mean granting religious exemptions to employer policies or modifying job duties in certain circumstances. An employee can sue for discrimination, for failure to engage in an interactive process, or for failure to accommodate under either or both laws if not provided a religious exemption when such an exemption is appropriate.
For federal law, Title VII of the Civil Rights Act of 1964 prohibits discrimination or harassment on the basis of religion. As the EEOC summarizes, this means that “[t]he law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”
For California law, the Fair Employment and Housing Act (“FEHA”) prohibits the same sort of discrimination and harassment on the basis of “religious creed.”
Despite the differing language, these protections are more or less identical.
When an employee asks for an accommodation to avoid an employment duty or to circumvent an employer’s policy, the employer must determine two things: a) whether the employee’s bona fide religious belief or practice conflicts with an employment duty; and b) whether accommodating the religious belief or practice would result in “undue hardship” for the employer.
- What counts as a bona fide religious belief or practice? (And does a pastor’s note help?)
An employee does not need a note from a religious leader in order to establish a bona fide religious belief or practice. In the words of the EEOC, a religious belief should be “generally presumed or easily established.” In fact, nobody else in the world need hold the same belief or perform the same practice, so it does not technically matter whether the official tenets of the religion, the employee’s own religious body or institution, or the employee’s own religious leader espouse the employee’s stated religious belief. The employee does not even need to believe in a deity for their belief to qualify as “religious,” though federal courts will generally go to greater lengths than California courts to count secular beliefs as “religious.” Nor do the religious beliefs or practices need to be logical, consistent, or comprehensible.
Here are some examples beyond the typical religious holidays or days of rest that illustrate how broad the definition of a religious belief or practice can be:
- Requirement to wear head coverings
- Prohibition against wearing pants or short skirts
- Requirement to wear certain hairstyles or facial hair
- Prohibition against covering tattoos
On the other hand, at least in California courts, veganism was not accepted as a religious creed sufficient to excuse a new hire from the requirement to obtain a mumps vaccine (which is or was apparently grown in chicken embryos). The court in the veganism case noted, however, that such beliefs could qualify as religious if they were treated more like a religion by the employee. It is also far from a safe bet that a federal court would exclude such beliefs from the federal definition of “religion.”
Given the fairly broad standards for what constitutes a religious belief or practice, a letter from a religious leader, like the pastor in the news story above, likely does help establish a bona fide religious belief or practice, for several reasons. First, a letter from a religious leader can serve as a religious tenet, given that most large religions do not have specific anti-vaccine tenets. Second, most religions that have religious leaders also have tenets directing adherents to follow the teaching or leadership of those religious leaders. This adds an additional religious belief in support of an anti-vaccine belief. Finally, even though religious beliefs need not be constant or consistently adhered to, a letter from a religious leader can help explain a change in position that might be considered evidence of insincerity. For example, if the employee seeking the exemption has an extensive vaccination record, a letter from a religious leader can justify the newfound belief.
Needless to say, with or without a pastor’s note, challenging the sincerity of an employee’s asserted religious belief will be difficult in most situations. Only where employers have strong evidence of a lack of sincerity—such as the employee’s own social media posts boasting about plans to evade vaccine requirements by claiming a religious exemption that is not bona fide—should employers consider pushing back. Or, if the employer later learns that the employee lied about having a sincere religious belief, the employer should treat the situation as it would any other employee misrepresentation, with discipline up to and including termination of employment. But, employers should exercise caution and conduct an appropriate investigation before disciplining on this basis.
Government bodies acting under state laws and outside the role of employer may have more leeway. (See, for example, a University of Massachusetts administrator pushing back on a student’s claimed religious belief.) But, for most employers, the biggest consideration will be whether and how to accommodate the claimed belief or practice.
- When must employers accommodate an anti-vaccine religious belief or practice?
Employers need not accommodate by providing a religious exemption when such accommodation would cause an “undue hardship” for the employer. The EEOC summarizes the potential forms of undue hardship: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
These considerations are certainly in play during the COVID-19 pandemic, as employers should have little difficulty showing that unvaccinated individuals pose safety risks to other employees and customers they come into close contact with. Many potential accommodations, such as extensive COVID-19 testing or changing employee duties could be costly or could decrease efficiency or increase the burdens of other employees. But, this will need to be a case-by-case determination based on the employee’s specific duties and surrounding circumstances. Employers should seek legal advice before making determinations regarding requested accommodations.
- How should employers practically address requests for religious exemptions from vaccine mandates?
Two very important things to remember up front: 1) employers must engage with their employees when employees request an accommodation for religious reasons; and 2) do not take adverse action against an employee for requesting a religious accommodation (that is called retaliation and it results in legal liability).
When receiving a request, we suggest focusing on ascertaining the extent of the accommodation requested. For example, does the employee never want to take a COVID-19 vaccine, or is the objection only to one of the available vaccines or certain aspects of a vaccine?
Then, consider any hardships that the employer and other employees would face if the accommodation request were granted and determine what sort of accommodation, if any, avoids any undue hardship. The focus here is on the nature of the job, and the availability and relative expense of available measures to accommodate the employee’s choice—for example weekly testing, additional personal protective equipment, remote work, erecting barriers or other adjustments to the workspace. Other alternatives may include transfer to a position not involving close contact with others or an unpaid leave of absence, in the right circumstances, like American Airlines’ announcement that it will place unvaccinated workers granted religious exemptions on indefinite unpaid leave until the pandemic meaningfully recedes. As mentioned above, such determinations require careful consideration and mishandling exemption requests risks significant exposure to liability, so seek the advice of counsel.
The legal status of vaccine mandates is changing rapidly, so we will keep you updated on any major developments here. And, of course, Weintraub Tobin labor and employment attorneys are available to discuss any vaccine issues that may arise for employers.