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 vaccination policy, ninety 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 path.
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.3 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 set of briars.
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)
5 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-b309-9a32d33fa8a96 https://news.yahoo.com/united-airlines-mandatory-vaccination-lawsuit-125700161.html
If you enjoyed this post, you might find these other posts on vaccination mandates helpful, https://workplacecoachblog.com/2021/11/the-reality-of-vaccine-mandates-in-the-workplace/; https://workplacecoachblog.com/2021/11/will-employees-resign-rather-than-get-vaccinated/ and https://workplacecoachblog.com/2021/10/can-employers-ask-job-applicants-if-theyre-vaccinated/.
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Thank you for your explanations of what religious exemptions from vaccination might mean in the workplace and how an employer can analyze potential costs to see if they are reasonable or constitute an economic hardship. it is interesting to note that the hardship cost for religious exemptions is not as difficult a test as that for other reasonable accommodations. As for the notice about “interfering with divine providence” in the break room goes, I don’t think that human actions logically or by definition, can.
Lynne, you’ve touched on one of my favorite segments of this ‘ducking the virus’ inanity. The history of eradication, or at least a huge element of control of a number of maladies of this nature (Polio is one of the best examples) is clear. In the 40’s, 50’s and 60’s at least, the world went from an ‘international problem’ to either complete or nearly so eradication of any threat to anyone for the past 50 years. It was done with a ‘no holds barred’, absolute inoculation of everyone.
So, now to the “religious exemption” scam – and I use that openly. Zealots seeking a positive or negative result from about anything will reach, stretch, lean…they’ll do whatever it takes to achieve their specific goal – either attaining or avoiding whatever. I know they’ll fabricate (I didn’t say “lie” but…when the truth is told and they use that excuse it becomes one), invent, seek out, endorse literally any thread to pull to get away with their objective.
A quick segue to understand that a ‘medical exemption’ (versus “religious exemption”) is something entirely different – it usually meets all of the tests: Qualifiable – you can observe the reaction/result; Quantifiable – you can measure the reaction; Repeatable – the reaction will show up each and every time, or with consistency; Measurable – you can view and record specific changes. And on, and more. For example, when you pass a cigarette in front of someone and they cough and/or gag literally every time – it’s pretty and plainly obvious that they react negatively to the presence of cigarette smoke; in addition, we’ve reasonably proven beyond a shadow of doubt that cigarette smoke causes cancer; sharing cancer-causing things is not really acceptable. Oh, and one more point on this – usually medical things ‘stick with you’, it’s not like you wake up tomorrow morning and don’t have the same reaction.
Back to the subject. Religion is an attitude or feeling; a belief. And “beliefs” can change on a whim. How many people in prison suddenly ‘find God’ and are no longer ‘bad people’ because if their newfound beliefs? Not that it hasn’t happened, but it seems to happen a lot. But then things come undone again when they are no longer in that environment. How many people ‘fall in love’ and, to appease their intended other or family, change religion – whether it’s to embrace something new or to divest themselves of something that others don’t approve of?
Yeah, the ‘coincidence’ of the posting on the lunchroom wall, and the sudden glut of appeals for ‘religious reasons’ isn’t anything other than an opportunity for some to ‘beat the system’ that they may not like. I believe, in about 98% of the cases, “religious objection” can be translated into “I don’t want to do it and I’ll find any excuse available to satisfy MY attitude and achieve MY end. I really don’t give a blast about the effect on anybody else. THIS IS ABOUT ME!”
In today’s world, something as plain and obvious as your (birth) sex can be controverted, changed, adjusted, used conveniently, altered, used to gain favor or advantage, it can be ‘fluid’. “I think I’ll be a female today” or, maybe…uh, maybe a male; or maybe a mash-up. It might not be a ‘daily’ change, but it’s sure fluid for some.
I maintain that religion is literally in the same vein. You can claim an exemption from something for ‘religious reasons’, and tomorrow, do something equally different and justify it for ‘religious reasons.’ And I don’t buy into that ‘fluidity’ as a means of avoiding doing what’s needed to try to beat this pandemic. I don’t like wearing a mask to protect myself (and you) and hope we can beat this thing soon. But that will only be possible if we ALL WORK TOGETHER to get there.
Not to mention that those who have been vaccinated can both get it and carry it, I know it only takes ONE rotten potato to spoil the entire bag. One person exempted can infect any and all who come in contact. Oops, is not the word to use to describe this.
Dan, I always enjoy your honesty and perspective. I want to counter a few thoughts you’ve raised. Faith is core to me, that means it’s not a “whim” or a “belief that can change on a whim.” I’ve received all 3 shots, however, if someone’s religion does result in them being unable to receive a vaccination, I hope they’re given a remote option. That said, I realize many who request religious exemptions are using religion, and don’t appreciate that. Meanwhile, the Navy Seal case is quite intriguing.
Your ‘counter’ is right on. I know some people who are STRONG religious fanatics. And they have been STRONG religious fanatics – with the same beliefs – for many years. Those people, I would consider would ‘qualify’ (strictly by the strength, verve and term of their convictions) for the religious exemption.
HOWEVER, let’s keep this in context and on point. Just because I claim to be ‘religious’ doesn’t mean a thing other than I’m stating a position.
I would not consider any ‘religious exemption’ claim that did not have something within the tenets of their claimed religion. And I don’t know of more than one or two religions that even might have something in their tenets about getting vaccinated against a physical scourge.
As an example, if the vaccine had some porcine component in it, a Muslim would be justified in requesting an exemption – it’s long been a part of their religious teachings. Whether they would qualify for it could then depend on how sincere their beliefs AND adherence to them were.
Another example that illustrates potential flaws in this is a friend of mine, who was an elder the the Church of the Latter Day Saints – a Mormon. Yeah, he was one of their ‘top dogs’ and talked about it a lot. But he also sucked on a cigarette occasionally, and was known to take a sip or two. Sorry, if you’re not ALL IN, then your exemption is not worthy.