Handling Religious Accommodation Requests in the Wake of Increasing COVID-19 Vaccination Mandates

What to Know

As COVID-19 vaccination mandates continue to increase across the country, employers are legally required to manage, and in some cases accommodate, exemption requests.  Presently, there are two legally recognized exceptions from vaccination mandates:  (1) Medical exemptions under the Americans with Disabilities Act; and (2) Exemptions based on sincerely held, religious beliefs under Title VII of the Civil Rights Act of 1964 or other State/local laws.  Some states have equivalent and/or more expansive laws for these particular exemptions. 

Medical exemptions are the clearer of the two to resolve.  They are subject to objective medical documentation provided from health care providers.  On the other hand, employers have reported an exponential increase in religious accommodation requests seeking exemption from vaccination.  However, there is no readily verifiable basis to determine whether an employee’s religious objections to mandatory vaccinations are sincere and, thus, legally warranting a workplace accommodation.  As such, employers are increasingly asking themselves how can they legally resolve accommodation requests without causing harm to the business.

Religious Accommodation Requests

The EEOC (Equal Employment Opportunity Commission) provides some guidance, stating that religious accommodation requests in response to a vaccination mandate requires employers to provide a reasonable accommodation for employees with sincerely held religious beliefs, practices, or observances that prevent the employee from getting a COVID-19 vaccine unless an accommodation poses an undue hardship to the employer.  EEOC guidance further explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Accordingly, employers should engage in the process described below.

1. Is The Religious Objection Sincerely Held

Initially, the first step is to determine if the employee is asserting a request based on a sincerely held belief.  Given the increased number of claims for religious exemption, employers are questioning the requests and should consider the following:

• Employers should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, practice, or observance. 
• However, if an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.  Additional documentation that an employer may request include: (1) written statements from religious leaders; (2) written religious material describing the religious belief or practice; and (3) statements and explanations from the employee that discuss the nature and tenets of their asserted beliefs and information about when, where, and how they follow the practice or belief.
• Personal philosophies, personal/political beliefs about vaccination, and lifestyle choices such as veganism do not support a basis for a religious accommodation.

2.  Assertions That COVID-19 Vaccines Contain Certain Products Such As Fetal Products

A number of clients have expressed concern with an increase in exemption requests asserting that COVID-19 vaccines contain fetal product or animal byproduct such as gelatin.  This is a novel legal issue with no reported case law to establish a basis for legal advice.  Accordingly, we are refraining from providing any recommended advice but instead reporting factors for consideration:

• A request based on an assertion that one’s faith prohibits vaccination because vaccines, including the COVID-19 vaccines, contain cells of aborted fetuses, fetal cells or DNA or gelatin, require a two-prong analysis:
  • First, an analysis of whether this is a sincerely held belief, which is unlikely challengeable;
  • Second, a determination as to whether the concern which forms the basis for the assertion is based on any facts to support the assertion.  Specifically, if the vaccine does not contain any of the products of concern, then, arguably regardless of the belief, there is no basis for the application of the exemption.
• Contentions that the vaccine contains cells of aborted fetuses, fetal cells, or DNA are disproved by the fact sheets for Pfizer, Moderna, and J&J. 
• The facts sheets further demonstrate that none of the COVID-19 vaccines contain gelatin.

We recommend that clients facing requests asserting these types of claims request that the employee provide documentation from a credible source corroborating their position (i.e., Food and Drug Administration (FDA), Centers for Disease Control and Prevent (CDC) or manufacturer fact sheets).  We will continue to monitor pending legal challenges addressing these issues closely and will provide updates when they become available. 

3. Assertion That One Cannot Take A Vaccine Because They Are A Devout Catholic or Devout Member of Another Faith

• Major religious leaders, such as Pope Francis, have released statements encouraging people to take the COVID-19 vaccination.

This issue is more complicated as the EEOC Guidance allows individuals to maintain a religious exemption even if their beliefs depart from the tenets of the religion.  That said, if you have reason to question their assertion, you should ask for further evidence of their history with the faith and evidence of their demonstrated commitment to the tenets they assert.

4. Does The Requested Accommodation Cause An Undue Hardship

Even after determining that an employee has a sincerely held religious belief, an employer can refuse to provide an accommodation if it would pose an undue hardship.  An accommodation constitutes an undue hardship if it causes more than a minimal burden on the operation of the business.  EEOC guidance provides the following as examples of undue hardships:

• Accommodations that violate a seniority system
• Accommodations that cause a lack of necessary staffing
• Accommodations that jeopardize health to staff and clients

An accommodation does not have to be limited to what the employee prefers.  If the proposed accommodation is reasonable and non-retaliatory, employers can propose any number of viable options (i.e., weekly testing, masks, social distancing, remote work).

Recommended Practices

Consistency in the decision-making process is critical to avoid claims of discrimination, retaliation, or bias.  Accordingly, employers should:

• Develop a policy or protocol to handle accommodation requests;
• Develop a request form that employees can use to convey the basis of their request;
• Maintain a file on each request memorializing all communications with the employee regarding the accommodation request and any contemporaneous notes created by the reviewer.
• Requests should be handled on a case-by-case basis; each request should be afforded an individual determination regardless of prior requests.
• Limit review of requests to a designated individual or individuals to ensure that assessments are done properly and are consistently analyzed and the decisions are also consistent, without indicia of discrimination or retaliation. 
• The reviewer(s) should be individuals who are in the HR department and well versed as to applicable federal laws, state/local laws, and EEOC guidance.  Prior to engaging in the process, we recommend the individuals meet with legal counsel to verify the most up to date understanding of the law as it applies to religious exemptions.