Employers implementing mandatory Covid-19 vaccination programs must manage, and in some cases accommodate, exemption requests. Legal exemptions from mandatory vaccination include medical exemptions under the Americans with Disabilities Act and exemptions based on sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state laws for both federal statutes).
Medical exemptions are subject to objective documentation from health care providers (who may risk penalties for failing to adhere to accepted medical practices), but there is no readily verifiable basis to determine whether an employee’s religious objections to mandatory vaccinations are sincere and subject to workplace accommodation.
Legal Contours of Religious Objections to Vaccination
The EEOC guidance concerning religious objections to mandatory vaccination directs employers to provide a reasonable accommodation for employees with sincerely held religious beliefs, practices, or observances that prevent an employee from taking a Covid-19 vaccine unless an accommodation poses an undue hardship to the employer.
Before an employer balances a religious accommodation against the undue hardship to the workplace (such as implementing mask-wearing, social distancing, or alternative working conditions), the employer must first ascertain if the employee’s religious objection is, indeed, a sincerely held belief.
While federal and local law may differ regarding legally-protected religious practices, the EEOC guidance defines religion broadly and protects beliefs and practices with which employers may be unfamiliar. Employers should, therefore, ordinarily assume that an employee’s religious accommodation request is based on a sincerely held religious belief.
An exception to this assumption exists, however, if an employer is aware of objective facts that question the sincerity of an employee’s claimed belief. If those facts exist, the employer may request additional information to support the claimed exemption.
What Is Not a Sincerely Held Religious Belief?
There is no uniform definition of “religion,” but it is generally accepted that a “religion” is based on beliefs that address fundamental questions about the meaning of life, humankind’s nature and its place in the universe, and the general exercise of faith.
Personal philosophies or beliefs about vaccines do not qualify as a religion. Ways of living, such as veganism, pacifism, or minimalism, similarly do not provide a religious exemption basis.
If an employee requests a religious exemption based on a personal philosophy, the employer may legitimately ask for more information about or question the claimed religious belief. Likewise, requests that are too generalized to understand, such as the statement that “my religion” prohibits vaccination, justify a request for further information to validate the exemption.
Complicating this inquiry is that, unlike a medical accommodation, no objective source validates a claimed religious exemption. Vanderbilt University Medical Center has published a useful resource on immunizations and religion. But that guidance does not replace the requirement that employers engage in an interactive discussion with employees to determine whether an exemption is merited.
A Template for Religious Exemption Inquiries
Employers generally have no reason to inquire about an employee’s religious faith, except for bona fide inquiries regarding scheduling for Sabbath observers, religious garb requirements that impact an employer’s uniform, safety or other job-related requirements, and health-care provider requirements. The coronavirus pandemic, however, has caused many employers who have adopted mandatory vaccination policies to confront—many for the first time—sensitive conversations about religious matters.
Employers adopting mandatory vaccination policies should designate personnel trained in human resources to engage in these conversations. Those tasked with these discussions should conduct them in an objective manner. Like other workplace policies, exemption requests should be treated consistently, employees should be encouraged to communicate with the employer, and exemption requests should be handled in a timely and discrete manner.
A template of questions that are posed to each employee requesting a religious exemption is helpful. Questions that ask the employee to identify the religion on which the religious exemption is based, and the duration of adherence may provide sufficient information to analyze the exemption.
A simple question framed as “whether the claimed religion prohibits the Covid-19 vaccine or vaccination generally” is fair in this context, though employers must understand that sincerely held religious beliefs may exist that might not align with central tenets of a religion.
‘Religious’ Exemptions Based on Misleading Claims
Some information circulating publicly is premised on inaccurate information that claims to support religious exemptions. For example, some individuals have asserted their faith prohibits Covid-19 vaccination because the vaccines are composed of the cells of aborted fetuses. These “facts” are verifiably false and employees raising these claims should be directed to scientific data that shows these claims are unfounded.
The factually incorrect rumor (upon which some religious exemptions are premised) that the Covid-19 vaccines themselves contain fetal cells or DNA is disproved by the actual fact sheets for the J&J, Moderna, and Pfizer vaccines that clarify no such ingredients are in those vaccines, though some vaccines have been developed or tested with scientifically vetted cell lines.
Major religious leaders have also issued statements supporting mandatory vaccination. Pope Francis recently released a statement urging all people to take the Covid-19 vaccine for the “good of all” and the Vatican’s doctrinal office has announced that it is “morally acceptable” for Catholics to take Covid-19 vaccines.
And while there is no single similar authority for the Jewish faith, it is a commonly accepted Jewish preceptthat guarding one’s health (and the health of the community) is a mitzvah, that commands taking the Covid-19 vaccine in the context of social responsibility.
Religious discussions are a sensitive workplace topic and having those discussions against the backdrop of a worldwide pandemic in which a vaccine plays a part does not make these discussions easy or simple. But applying a sensitive approach to these claimed exemptions should yield a consistent and mindful result.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jen Rubin is a member at Mintz practicing employment law and is also a member of the firm’s ESG Practice group. She advises clients across various industries on issues such as wage and hour compliance and maintains a robust trial practice, with a focus on class actions, trade secrets, and employment mobility disputes, and the defense of discrimination, retaliation, and other disputes arising from the employment relationship.