Can religious beliefs get employees out of vaccination mandates?
With the rise of the highly contagious variant of COVID-19 Delta, mandatory vaccination requirements are becoming more common in the workplace. Unless prohibited by law or collective agreement, employers are free to determine working conditions, including that vaccination against COVID is an essential safety rule and qualification for employment. Additionally, OSHA requires nearly all employers to provide workers with a workplace that is free from recognized hazards that could cause death or serious physical injury. Nothing in modern times falls more directly into the category of recognized dangers than COVID.
Related: Vaccine mandates now required: What to know about Biden’s new rules
Those who increasingly oppose the vaccine are responding by asking for an exemption based on their religious beliefs. Federal civil rights laws such as Title VII of the Civil Rights Act of 1964 and similar state and local anti-discrimination laws prohibit an employer from discriminating against an employee or potential employee on the basis of their religion. Employers must accommodate employees’ religious beliefs that are “sincerely held.” A religious accommodation is an adjustment to the work environment to allow the employee to conform to their religious beliefs.
Although nearly every organized religion supports vaccination, the EEOC’s definition of “religion” is so broad that it encompasses an endless universe of religious beliefs and practices. A creed is religious, as opposed to a “social, political, or economic philosophy,” for purposes of Title VII, the EEOC’s Religious Accommodation Compliance Manual states, whether it is “religious” in the “own regime things” of the person, that is, it is a “sincere and significant” belief which “occupies a place in the life of its possessor parallel to that occupied by… God”. The individual employee’s sincerity in adopting a religious observance or practice is “largely a matter of individual credibility”.
Unfortunately, neither the EEOC nor the courts have provided employers with a practical “test” to analyze a request for religious accommodation.
Certainly the EEOC had not anticipated COVID, the Delta Variant, the need for mandatory vaccinations, that vaccine opponents would co-opt the Religious Accommodation Act for their own purposes, or that a cottage industry made up of websites, YouTube videos and Facebook pages would spring up to help those seeking to avoid vaccination do so more effectively.
Related: 6 Experts on What Biden’s Employer Vaccine Mandate Means for HR
Employee safety is ‘highly relevant’
An employer has three answers when it comes to responding to a request for religious accommodation.
- Accept the application.
- Dismiss the request on the grounds that the employee’s belief is “insincere”.
- Or decide that responding to the request would cause it an “undue burden” by forcing the employer to incur more than one “de minimis Cost.”
Almost 50 years ago, the Supreme Court of the United States, in deciding Trans World Airlines vs. Hardison ruled that TWA did not have to upset the seniority system in its collective agreement to accommodate an employee’s religious belief that prevented him from working Saturdays. The court rejected proposals that the plaintiff’s Saturday shift be filled by co-workers at premium rates or by a supervisor from another department. Both alternatives would incur costs for TWA in the form of “loss of efficiency or higher wages” because they would require TWA to bear more than one de minimis Cost.
Although some judges have recently expressed dissatisfaction with the de minimis standard, it remains the law. Last April, the court reaffirmed the de minimis norm by refusing to hear two cases of 11and Circuit Court of Appeals in which the employer refused to grant religious accommodations due to undue hardship.
See also: Learn more about vaccines and labor law
Generally, employers have not found it difficult to uphold an undue hardship defense where accommodation to a religious belief would compromise workplace safety. For example, in a case involving the New York Transit Authority, an employee requested an accommodation exempting him from the employer’s policy requiring car inspectors to wear hard hats for personal safety and in accordance with agency regulations. ‘OSHA. The court found that the potential risk of injury to the plaintiff, as well as the potential injury to his co-workers who might be called upon to rescue him if he became incapacitated, required the employer to assume risks that would result in undue hardship.
“Security considerations are highly relevant in determining whether a proposed accommodation would cause undue hardship to the employer’s business,” read the conclusion in Kalsi c. New York City Transit Auth. Similarly, the NYPD established undue hardship when it refused an Orthodox Jewish officer’s request to forgo shaving because he would not be able to effectively wear a respirator requiring a tight face seal, preventing him thus to respond to certain emergencies with his fellow officers.
It is important to note that the de minimis The standard is a federal standard, and state and local anti-discrimination laws may have their own standards for what constitutes undue hardship. For example, the “religious accommodation” standard of “undue hardship” in New York State human rights law is harder than Title VII because it is “dwelling requiring major expense or difficulty (including significant interference with the safe or efficient operation of the workplace or violation of a good faith seniority system). (emphasis added)
New York City, which has its own human rights law, was concerned that the federal government de minimis standard was too low, amended its law in 2011 to add a definition of undue hardship that mirrors state law. There is, however, little case law in New York on where, in the context of religious accommodation, “de minimis cost stops” and where “significant expenditure” begins. Given, however, the danger posed by the Delta variant and the mandated pro-vaccine mandates and orientation of the State and New York City, it is likely that employers will be able to successfully argue that employee vaccination is essential if employers are to safely or effectively exploit their workplace.
The result is that employees may find that their religious beliefs will not protect them from their employer’s mandatory vaccination rule; many will have no legal recourse and may have to choose between employment and vaccination.
The need to maintain a safe workplace and the government’s turn to vaccination mandates to increase vaccination rates will put significant pressure on employers to implement mandatory vaccination programs and, in order to to maintain the integrity of these programs, reject most requests for religious accommodation.