Title VII of the Civil Rights Act of 1964 requires employers with more than 15 employees to reasonably accommodate an employee’s (or prospective employee’s) refusal to be vaccinated under a mandatory vaccination policy if the refusal is based on a “sincerely held religious belief.” The employer must “reasonably accommodate” the employee’s religious belief unless to do so would cause an “undue hardship” to the employer. But what do the above-quoted terms mean? Does the employer have the right to investigate whether the religion is “known” or how devout the employee is? How does the employer go about evaluating the employee’s request?
Below is some general guidance relating to the “religious” exemption:
- The vaccine policy should be in writing, widely disseminated, and clearly identify how an employee can apply for a “religious” exemption (or other exemption).
- The EEOC’s definition of “religion” goes beyond membership in a church or belief in God and includes firmly and sincerely held moral or ethical beliefs; consequently, the employer may be unfamiliar with the religion.
- Because of this, the employer should approach each request from the standpoint that the employee’s request is based on a sincerely held religious belief.
- If the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer is permitted to request that the employee provide an explanation of his or her sincerely held religious beliefs and, if necessary, documentation from the employee’s religious leader regarding the religious belief that conflicts with the vaccination requirement.
- Employees who were refused an exemption because they merely asserted a personal preference against vaccinations have historically not been successful in claims brought under Title VII.
If the exemption is accepted, the employer must reasonably accommodate the employee unless it causes an undue hardship. Courts define “undue hardship” under Title VII as having more than minimal cost or burden on the employer. Relevant considerations include compromised workplace safety due to the frequency or proximity of the employee’s contact with other employees and customers and the identifiable cost of the accommodation in relation to the size and operating costs of the employer. Examples of a reasonable accommodation include requiring the employee to wear a face mask, work socially distant from coworkers or clients, getting periodic tests for COVID, working from home, or reassignment. The accommodation measure must be legitimate and non-retaliatory.
State laws may provide the employee with additional grounds for a religious accommodation from the vaccine policy. For example, §21.108 of the Texas Labor Code prohibits discrimination based on an employee’s “religious observance, practice or belief,” unless the employer demonstrates that it cannot reasonably accommodate the employee without undue hardship in the conduct of the employer’s business.
Richards Rodriguez & Skeith’s employment lawyers will be tracking this and other COVID vaccine issues for employers We recognize the complexity of employment relationships and offer practical advice to achieve our clients’ objectives while reducing the risk of employment litigation. This includes drafting comprehensive employment policies and assisting the employer with issues and questions that arise from employees and enforcement. Please contact us for more information or to speak with an attorney