Your employee seeks a religious exemption from vaccine mandate. Now what?

President Biden’s recent proposal that employers with 100 or more employees mandate vaccination or weekly testing may affect approximately 100 million Americans.

Moreover, in a recent Washington Post – ABC poll, 35% of the participants said they would request an exemption on religious or medical grounds (which the Biden proposal allows for) if their employer mandates vaccines. If the polls are accurate, we could be looking at 35 million people who may soon be asking their employers for an exemption from the vaccine, most of which are expected to be based on a religious belief against vaccines.

Responding to this expected tsunami of religious accommodation requests may appear to be daunting, but a well-organized plan can make the task manageable. Employers should follow a five-step process when faced with religious accommodation requests.

Step 1: Is the employer on notice of a need for a religious-based accommodation?

The Law: The federal Equal Employment Opportunity Commission states that employers are not required to provide an accommodation unless they are on notice that one is needed for religious purposes.

This is, however, a low bar for employees to overcome. The issue typically arises when employers advise employees of a particular policy or work requirement, and the employees respond indicating that an accommodation is needed for religious reasons. The accommodation request need not be in writing and the employees need not use any “magic words,” such as “religious accommodation” or “Title VII.”

Has the employee adequately notified the employer of the accommodation request?

Whether the request is made orally or in writing, the best practice is to make sure it is properly documented by requiring that the employee complete a “Religious Accommodation Request Form.”

Step 2: Does the employee have a sincerely held religious belief?

The next and most difficult step is to determine if the request is genuine, which means that the employer must investigate whether: (1) the employee’s request is truly based on “religion” (as opposed to a belief based on politics or safety concerns); and (2) whether the employee “sincerely” holds that belief.

The Law: Is the request based on “religion”?

“Religion” is not limited to the major faiths. The EEOC defines religion as: “Moral or ethical beliefs as to what is right and wrong which are sincerely held.”

The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee.

How do you determine if the religious belief is sincere?

Inquiries to the employee’s manager(s) may provide information on the legitimacy of the religious accommodation request. The questions to ask may include whether the employee has (1) previously espoused such religious beliefs (or any religious beliefs at all); (2) been complying with policy (and for what period) without expressing any objections; (3) expressed general anti mask, vaccine or testing sentiments unrelated to any religious or moral basis.

Talk to the employee. Indicators of a non-religious motive for the accommodation request or insincerity in the religious belief include the employee focusing on the politics (“mandatory vaccinations are the result of authoritarian Democratic rule”), the safety of vaccines (“they were rushed into distribution”), or the infringement of the employee’s personal freedoms (“the Government has no right to force a vaccine on me”).

“Religious” organizations have set up websites offering (for a price) to provide religious exemption “cards” or letters for employees to provide to employers setting forth the basis for their religious objection, see https://www.thehealthyamerican.org/religious-exemption-card. Use of this type of generic letter may signal an insincere religious belief.

Step 3: Can the employer deny a religious accommodation request based on “undue hardship”?

The Law: EEOC guidelines provide that once an employer is put on notice of an employee’s sincerely held religious belief, the employer must provide a reasonable accommodation unless it would pose an undue hardship.

Under Title VII, courts have defined “undue hardship” as having more than minimal cost or burden on the operations of the employer. This is an easier standard to meet than undue hardship under the ADA, which is defined as “significant difficulty or expense.”

In general, a religious accommodation may cause undue hardship if it (a) is costly; (b) compromises workplace safety; (c) decreases workplace efficiency; (d) infringes on the rights of other employees; or (e) requires other employees to do more than their share of potentially hazardous or burdensome work

Is there an “undue hardship”?

Exposing other employees to the maskless, unvaccinated and/or untested employee could qualify as a hardship based on (a) a compromise of workplace safety; (b) decreased workplace efficiency; and (c) infringement on the rights of other employees.

Step 4: Are there other accommodations that can be offered?

The Law: Faced with a religious exemption request, the employer must engage in an interactive process with the employee to determine if any reasonable accommodations can be offered. Simply determining that the requested accommodation constitutes an undue hardship is only the first step; employers must then explore alternative reasonable accommodations.

What alternative accommodations should be considered?

The EEOC provides the following examples of alternative accommodations: (a) remote working; (b) working at a social distance from coworkers or non-employees; (c) isolation to a particular work area; (d) working a modified shift that reduces exposure to coworkers or non-employees; (e) periodic testing for COVID-19; or (e) accepting a reassignment.

Step 5: Document every step.

Document everything, especially if the accommodation is denied. The documentation should include the original request from the employee, any request for additional information and supplemental information provided by the employee, and the reasons for the denial, including whether the request was found to be not “religious” or not “sincere.” The entire interactive process, including any accommodations offered, should also be documented.