Over the last several months, mandatory vaccination requirements took center stage in the public response to COVID-19, but with the play getting underway and vaccination requirements becoming operative, it is the request for religious accommodation (i.e., exemption from vaccination requirements) that may be stealing the show.
Title VII and FEHA Set the Stage for Religious Exemption Requests
While equal employment opportunity laws permit vaccination requirements as a condition of employment, Title VII of the Civil Rights Act of 1964 (Title VII) and the Fair Employment and Housing Act (FEHA) prohibit religious discrimination in employment and can protect employees who cannot comply with such requirements because of their sincerely held religious beliefs.
Because “religion” is broadly defined under Title VII and the FEHA, claims that an employee holds a sincere religious belief that precludes compliance with a policy are difficult to question.
“Religion” includes “all aspects of religious observance and practice as well as belief.” It includes beliefs that are commonly associated with the teachings or tenets of the established world religions (i.e., Christianity, Judaism, Islam, Hinduism, and Buddhism) as well as new and uncommon beliefs. These beliefs do not need to be connected with any religious group. Even if an individual is a member of a religious group, their beliefs may differ from the teaching or tenets of a faith to which the individual otherwise subscribes.
The breadth of this definition makes questioning an individual’s religious belief difficult. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, provides that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, the EEOC does acknowledge that “if an employer has an objective basis for questioning either the religious nature or sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.”
Religious Exemption Requests Become the Star of the Show
Historically, employee requests for religious accommodations from workplace policies have been uncommon, the understudy to more common requests for medical accommodation. However, in the context of vaccination requirements, these roles have reversed, and requests for exemption to vaccination requirements based on religion are becoming the star of the show.
Employers are responding to the newfound fame of the religious exemption request in different ways. On one end of the spectrum are employers that are inclined to accept requests for religious exemption from vaccination requirements without much, if any, question. On the other end are employers that may be skeptical of such requests and inclined to scrutinize each request.
Determination of Qualification
As a preliminary matter, employers must determine that there is a conflict between the employee’s religious beliefs and the employer’s COVID-19 vaccination requirement or the requirement imposed by a superseding authority.
There are two ways that we would suggest that employers approach this initial question, either provide employees a “yes or no” question as to whether they have a sincerely held religious belief that precludes vaccination, or request that they explain in their own words how their sincerely held religious belief precludes vaccination.
Employers who adopt the first approach generally accept responses in which the employee answers “yes” as ending the inquiry as to whether the employee has a sincerely held religious belief. Employers who adopt the second approach are more inclined to probe further, as discussed below.
Nature of a Religious Belief
Courts recognize that, by legal definition, a “religion” addresses fundamental and ultimate questions having to do with deep and imponderable matters, that it is comprehensive in nature and consists of a belief-system as opposed to an isolated teaching, and may be recognized by the presence of certain formal and external signs.
If the employee’s response as to the conflict between their religious belief and the employer’s vaccination requirement does not provide sufficient information to determine whether the belief is religious in nature, the employer may reasonably ask additional questions in order to ascertain that the basis of the employee’s opposition to vaccination is religious.
For example, compare the following responses to the question concerning a conflict between the employee’s religious belief and the vaccination requirement:
- “The COVID-19 vaccines were developed using or tested on fetal cell lines, and I cannot in accept vaccination with a product that relies on fetal cells.”
- “I adhere to a religious belief that recognizes that life begins at conception and that every human life is sacred, and because the COVID-19 vaccines were developed using or tested on fetal cell lines, I cannot in good faith accept vaccination with a product that violates this belief.”
The first response states only an opposition to the use of products developed using or tested on fetal cell lines, but does not provide any information that the opposition is religious. Therefore, the employer could reasonably ask certain additional questions in order to ascertain the nature of the employee’s objection, and about the belief system that makes use of products impermissible. On the other hand, the second response demonstrates a belief system that, if not comprehensive, is not merely limited to opposing COVID-19 vaccinations, and includes some consideration of existential issues, such as life and death, that are common to religions.
Any secondary inquiry by an employer should be individualized and should focus on whether the employee’s refusal to be vaccinated is actually part of and pursuant to a system of religious beliefs held by the employee.
Sincerity of a Religious Belief
A second line of questioning concerns the sincerity of employee’s religious beliefs.
While courts recognize that an employee’s sincerity is largely a matter of individual credibility, there is no clear guidance as to what factors may sufficiently undermine an employee’s credibility on this subject. This can understandably make employers reluctant to probe into the sincerity of an employee’s religious beliefs. However, if an employer were to make such an inquiry, the employer should consider limiting its inquiry to the following factors that courts have recognized as potentially undermining an employee’s credibility:
- Employee behavior that is markedly inconsistent with the professed belief;
- The timing of the employee’s request renders it suspect; and
- The employer has other reason to believe that the employee’s request for accommodation is not sought for religious reasons.
In the context of COVID-19 vaccination each of these factors could conceivably be implicated, as provided below:
- The employee recently received other vaccinations, including potentially a first COVID-19 inoculation;
- The employee recently expressed personal objections to COVID-19 vaccinations, and did not cite any religious reasons for such opposition ; or
- The employee purchased a religious exemption form from an online church with which they had no previous relationship.
While an employer’s inquiry into the sincerity of an employee’s sincerely-held religious belief should be narrowly tailored and no more intrusive than necessary, where the employee’s conduct creates an objective basis to question the employee’s credulity, additional probing may be appropriate.
Star Turn for Religious Exemption
Employers that are adopting their own vaccination policies or merely complying with a superseding authority’s directive should consider how they will approach questions of religious exemption, and whether they will adopt a more permissive or assertive approach to such requests. The requests for exemption will come and it is prudent to consider how to respond before being star struck.