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Are religious exemptions a way out for employees or a tricky challenge for employers?

By Lynne Curry

Question:

If I’m to believe the stack of religious exemptions on my desk, a miracle unfolded in our company last week. Within days of announcing our mandatory COVID-19 vaccination policy, 90 percent of our unvaccinated employees found religion.

I’m holding a dozen exemption requests that use an identical phrase, “This mandate directly affects my religious beliefs. The Bible tells me my body is a temple.” I suspect the few unvaccinated employees who haven’t yet claimed a religious exemption didn’t see what one of our employees helpfully posted next to the breakroom coffeepot. It says employees can refuse vaccinations because vaccines interfere with divine providence.

What can we do? My HR officer and I understand we’re obligated to “reasonably accommodate” sincerely held religious beliefs. Except—if we accommodate these employees, it makes our newly instituted mandatory vaccination policy meaningless.

Answer:

You’ve landed in a briar patch.

Yes, you need to accommodate employees with sincerely held religious beliefs if you can do so without undue hardship or their presence poses a direct threat to others’ health and safety. And, as you and many employers have found, large numbers of employees now claim religious exemptions to avoid vaccinations.

Here’s what you, other employers and your employees need to consider: what’s sincere; what’s an undue hardship and what’s reasonable.

What is sincere?

According to labor and employment attorney Alana Genderson, employers assessing the sincerity of a religious belief can consider whether “the employee’s behavior is inconsistent with the professed belief; the accommodation constitutes a desirable benefit likely to be sought for secular reasons; the timing of the request renders it suspect; or the employer has an objective reason to believe the accommodation is not sought for religious reasons.”1

Notably, the Pope describes getting vaccinated as an “act of love” and the Catholic Church, Jehovah’s Witnesses and Christian Scientists have all issued statement saying their religion doesn’t prohibit members from receiving the COVID-19 vaccination.1

Undue hardship

Although employers face a heavy burden to prove accommodating a disabled employee might pose an undue hardship, the yardstick for religious accommodation is different. According to the federal Equal Employment Opportunity Commission, employers don’t need to accommodate an employee’s religious beliefs or practices if the accommodation presents more than a de minimus (minor) cost or burden on the employer’s operations.2

Although individual states and municipalities may have different standards, most note that employers can factor into their undue hardship assessment whether the religious accommodation “diminishes efficiency,” “infringes on other employees’ job rights or benefits;” or compromises workplace safety.Additionally, multiple courts have ruled that anything more than a “de minimis” cost is an undue hardship and note that the employer’s cost can include the risk of spreading the coronavirus.4

Can you reasonably accommodate your employees?  

Can you reasonably accommodate the employees who request exemptions? Ask yourself these questions: Do your employees work outdoors or indoors? Do they work remotely and alone or in groups and with close contact with coworkers or customers?  Can you reasonably accommodate your employees by weekly COVID-19 testing along with masking and physical distancing; staggered arrival and departure times; or by transferring your employees to private workspaces or to positions that don’t require interaction with others? Will your employees expect you to absorb the cost for weekly testing?  Do the sheer numbers of requests you’re receiving for similar exemptions and the cumulative cost of granting those accommodations make the situation unworkable?

Indefinite leave of absence?

Although some employers have placed employees seeking exemptions on indefinite unpaid leaves of absence, this strategy has risk. United Airline and Oak Ridge National Laboratories employees have sued their employers alleging an indefinite unpaid leave isn’t reasonable.5, 6 While both employers defend their strategy, the plaintiff employees allege that the unspecified leave term, accompanied by the loss of health insurance and other benefits, is equivalent to being fired. If you elect the unpaid leave route, consider defining an end date to the leave.

Finally, although many employees see claiming a religious exemption as an easy strategy for avoiding vaccinations, it’s not. As an employer, your path through the briar patch includes interviewing your employees one-by-one because some exemption requests may be sincere; deciding which employees can be accommodated and asking an attorney for assistance so you won’t make decisions that are discriminatory, landing you in another patch of briars.

https://www.npr.org/2021/10/04/1042577608/religious-exemptions-against-the-covid-19-vaccine-are-complicated-to-get

2 https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace

3 https://humanrights.alaska.gov/wp-content/uploads/2021/02/Religious-Discrimination.pdf

4 When Does a COVID-19 Vaccine Accommodation Cause an Undue Hardship? (shrm.org)

https://www.wbir.com/article/news/health/coronavirus/six-ornl-employees-sue-over-the-companys-vaccine-accommodation-ut-battelle-unpaid-leave/51-a84ec80c-f025-447d-b309-9a32d33fa8a9

https://news.yahoo.com/united-airlines-mandatory-vaccination-lawsuit-125700161.html

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