Crowd of people protesting against coronavirus vaccination. Focus is on black woman carrying banner with ‘no COVID vaccine’ inscription.

As COVID-19 vaccines have become widely available over the course of the past few months, increasing numbers of public and private employers have implemented mandatory vaccination policies or announced their intention to do so. Although the approved vaccines have an excellent track record of efficacy and safety, not everyone is willing to roll up their sleeve. Reasons given for declining the vaccine include social objections (including unfounded objections prompted by social media posts), political objections, and concerns about vaccine safety and/or possible side effects.

Employees have also increasingly cited religious objections as their reason for declining vaccination; this, despite the fact that no major religious group to date has indicated their religion prohibits the COVID-19 vaccines.

Nevertheless, because employment discrimination based on religion is actionable under Title VII of the Civil Rights Act and other state and local anti-discrimination laws, employers presented with a religious objection to a vaccine mandate must tread carefully lest they find themselves on the receiving end of a discrimination lawsuit, if they refuse to grant a religious accommodation.

This is not to say that an employee is automatically entitled to an exemption from a vaccine mandate when religion is invoked. Just like any other accommodation request, employers are entitled to ask questions for purposes of evaluating whether or not to grant the request. With respect to requests for a religious accommodation, they must be granted only if (a) the employee’s belief, practice or observance is religious in nature; (b) the belief conflicts with the employer’s requirement (such as vaccination); (c) the belief is sincerely held; and (d) the requested accommodation would not cause an undue hardship for the employer.

Admittedly, the foregoing inquiry is not an easy one to undertake, particularly when it comes to determining if an employee’s stated belief is “sincere,” as opposed to simply an excuse. The difficulty in evaluating sincerity is compounded by guidance issued by the Equal Employment Opportunity Commission (EEOC), that alerts employers to be prepared to consider accommodations grounded not only in mainstream religious beliefs, but also nontraditional ones that the employer might not be familiar with.

In instances where a request for accommodation is based on a nontraditional religion, the employer is entitled to ask the employee to explain their religious beliefs for purposes of evaluating their sincerity. For example, if an employee has in the past been open and vocal about his devotion to religion “x,” but suddenly claims to be an adherent of a different and obscure faith that supposedly prohibits vaccines, an employer has justification to question whether the employee is sincere in that assertion. Likewise, if an employee has in the past voiced opposition to vaccines based upon non-religious reasons and then suddenly cites a religious objection in the face of a workplace vaccination mandate, the employer may inquire further.

Employers should keep in mind that even if an employee’s request for an accommodation appears to be grounded in a bona fide religious belief (or if the employer does not have sufficient grounds to question the employee’s sincerity), an accommodation request can still be denied if granting it would pose an undue hardship on the employer. Among other things, employers may consider such factors as whether the employee must work in close proximity to others, and the risk an unvaccinated employee might pose to co-workers – and in particular, any co-workers who are medically vulnerable.

Lastly, as with any accommodation request, an employer is not required to provide the accommodation the employee asks for if there are other reasonable alternatives that are less disruptive to the employer. For example, if an unvaccinated operator asks that her workstation be moved within the dispatch room as an accommodation, you can alternatively have her work in a different room or telecommute if her presence potentially poses a risk to others. If an alternate accommodation is offered, the reason for not granting the one the employee requested should be explained to the employee.

In conclusion, dealing with vaccine-related religious accommodation requests in the midst of a pandemic is without question a slippery road to navigate. The task of determining whether a stated religious objection to being vaccinated is sincere is an exceptionally difficult one and carries with it the risk of a discrimination lawsuit in the event an employee’s request is denied. Employers should make sure supervisory personnel are aware of these issues, and consider consulting with their counsel in responding to any accommodation requests they might receive.

 

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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