How to Evaluate A Complex Request For Religious Exemption Or Accommodation

Posted On January 11, 2022

This article originally published on HR.com on December 29, 2021 and is republished here with permission from the publication.

Title VII of the 1964 Civil Rights Act (“Title VII”) has long required covered employers to provide reasonable accommodations for an employee’s sincerely held religious beliefs, unless doing so would constitute an undue hardship. Before the COVID-19 (“COVID”) pandemic, requests for religious accommodations were not pervasive or controversial in most workplaces.

However, once COVID vaccines became available and mandated either by employers or the government, the Equal Employment Opportunity Commission (“EEOC”) declared that employers must exempt, from vaccine mandates, employees who have either a medical reason or a religious belief prohibiting them from taking the vaccine.

Nearly overnight, many employers faced a barrage of requests for religious exemptions or accommodations, forcing those employers to evaluate whether a request involved a “sincerely” held belief or merely was a dubious secular excuse to avoid vaccination.

Most religions do not prohibit or object to vaccinations, and many religious leaders, including Pope Francis, publicly have expressed support for COVID vaccinations. Nevertheless, a handful of Christian denominations have theological objections to vaccinations. Moreover, an individual may profess a sincerely held religious belief that is inconsistent with their religion’s stated orthodoxy, making evaluations for religion exemptions tricky and dependent on the specific circumstances.

A. EEOC Guidance

The EEOC emphasizes that the definition of religion is broad and protects beliefs, practices, and observances with which an employer may be unfamiliar. Therefore, employers ordinarily should assume that an employee’s request for a religious exemption is based on a sincerely held religious belief, practice, or observance. 

However, if an employee requests a religious exemption, and the employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information.

Objections to COVID vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII and thus do not merit an exemption from a vaccine mandate.

For purposes of evaluating requests for religious exemptions or accommodations, an “undue hardship” means more than minimal cost or burden on the employer (a slightly more lenient standard than evaluating “undue hardship” for disabilities under the Americans with Disabilities Act). 

Considerations relevant to evaluating undue hardship can include, among other factors, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.  Employers also may consider direct monetary costs and the burden on the conduct of the employer’s business – including the risk of the spread of COVID to other employees or to the public.

B. Court Rulings

To date, courts around the country consistently have rejected religious exemption claims related to COVID vaccine mandates and have accepted employers’ undue hardship defenses on this issue. For example, a Massachusetts federal court recently rejected hospital employees’ claims for a religious exemption related to a COVID vaccine mandate and agreed that any accommodation, under the circumstances, would constitute an undue hardship, ruling that:

“To the extent [employees] are requesting masking, socially distancing, or periodic testing as reasonable accommodations, [the employer] is justified in concluding that doing so would present an undue hardship. . . . [The employer] determined that ‘allowing any employee . . . just to mask, engage in periodic testing, and socially distance was not adequate to meet [the hospital’s] urgent health and safety priorities and protect its vulnerable patient population.’ . . .

. . . [P]ermitting the [health care employees] to continue to work . . . without being vaccinated would materially increase the risk of spreading the disease and undermine public trust and confidence in the safety of [the hospital’s] facilities. Those likely harms to [the employer]—while perhaps difficult to measure in terms of dollar amounts—are certainly not de minimis.” 

Together Emples v. Mass. Gen. Brigham, Inc., 2021 U.S. Dist. LEXIS 217386 (D.Mass., Nov. 10, 2021) (emphasis added).

The Together court further ruled that allowing unvaccinated employees to continue working in a health care facility potentially would harm the facility’s public image, which alone would constitute more than a de minimis cost, concluding that “Reputational effects on an employer can also impose an undue hardship.”

C. Practical Considerations

Consider the following to help you evaluate a potentially complex request for a religious exemption or accommodation:

• Develop and consistently apply uniform procedures for every religious exemption request;
• Discuss the request and potential accommodations with the employee, as Title VII requires employers to engage in an “interactive process” with the employee;
• Courts have recognized that the more a person’s professed religious beliefs differ from the orthodox beliefs of his/her faith, the less likely they are sincerely held;
• An employee’s sincerity in holding a religious belief is often a matter of individual credibility.  Some factors that might undermine an employee’s credibility include:  whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect; and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons;
• Ask employees who seek a religious exemption to explain specifically how their religious belief conflicts with the employer’s COVID vaccination requirement;
• Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and newly adopted or inconsistently observed practices may nevertheless be sincerely held;
• Do not request excessive or unnecessary information corroborating an employee’s religious belief. Employers may ask employees to provide third-party verification of their religious belief, though the verification should not be limited to clergy, as employers should accept verification from any knowledgeable source, including fellow congregants or believers;
• Employers may deny a request for a religious exemption if the employee fails or refuses to cooperate with the employer’s reasonable request for verification of the sincerity of the professed religious belief;
• Do not assume that an employee is insincere simply because some of the employee’s religious practices deviate from the commonly followed tenets of the employee’s religion or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative in assessing whether a belief is sincerely held;
• Courts have found undue hardship under Title VII where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work; 
• Assess undue hardship by considering the particular facts of each situation, and be prepared to demonstrate how much cost or disruption the employee’s proposed accommodation would involve (if you deny the proposed accommodation);
• Common and relevant undue hardship considerations during the COVID pandemic include, for example, whether the employee requesting a religious exemption to a vaccination mandate works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals); and
• Consider the total number of employees who are seeking a similar accommodation in the same work group, department, or facility (i.e., the cumulative cost or burden on the employer).

Hannah D. Stetson and Reginald W. Belcher are Attorneys/Shareholders with the Turner Padget law firm in South Carolina. They regularly represent and defend employers in state and federal courts and before various governmental agencies. You can reach them at rdukes@turnerpadget.com and rbelcher@turnerpadget.com.