Educators from high school to college know when kids crib their assignments from the web. And it seems to be going the same way with claims of religious exemption from the covid vaccine. OSHA’s upcoming vaccine mandate aimed at employers with 100 or more employees has, predictably, sparked an outsized interest in religious exemptions. Some clergy are already offering exemption letters for sale over the internet.
What are you supposed to do now?
What’s not a sincerely held religious belief
According to the EEOC, as long as employees’ religious beliefs are sincere, they don’t need to belong to an organized religion in order for them to request an accommodation for those beliefs under Title VII. As a result, you’re generally prohibited from delving into employees’ religious beliefs, which is normally a good thing.
But it’s equally clear employees just can’t say anything or everything is a religion. Political views aren’t religious and neither are lifestyle choices. Neither, we might add, is a fear of vaccination.
Factors you can consider to determine whether an employee’s assertion that their religion forbids them from being vaccinated is bona fide include:
- Whether they’ve behaved in a manner markedly inconsistent with their professed beliefs.
- Whether the accommodation sought is a particularly desirable benefit employees are likely to seek for secular reasons (e.g., continued telecommuting by employees who just don’t want to go back to the office).
- Whether the timing of their request is suspicious (e.g., it follows an earlier request by the employee for the same benefit for secular reasons).
- Whether you otherwise have reason to believe the accommodation isn’t sought for religious reasons.
The EEOC warns, however, you shouldn’t assume an employee is insincere simply because some of their practices deviate from the commonly followed tenets of their religion.
Using these criteria, it would be easy to slot employees who’ve previously mouthed off about the pandemic or vaccines into the insincere category. For these employees, it would be acceptable to ask them to present additional supporting documentation.
This brings us back to kids and homework. What do you do if an employee presents a form letter you’ve seen before from a member of the clergy?
We don’t know the answer to that question, but we can propose a solution. Whatever your procedure for determining employees’ sincerely held religious beliefs, it should be applied uniformly. You can accomplish this by having them complete a questionnaire with objective, rather than subjective, questions.
Undue hardship
Even if employees have sincerely held religious beliefs, you don’t have to accommodate them if doing so would cause you undue hardship. An accommodation would cause undue hardship, according to the EEOC, if it would impose more than de minimis cost on your business operations. Factors relevant to undue hardship may include:
- Your workplace.
- The nature of the employee’s duties.
- The identifiable costs of the accommodation in relation to your size and operating costs.
- The number of employees who will need to be accommodated..
There is, of course, more to the determination of whether employees’ sincerely held religious beliefs prohibit them from getting the vaccine and whether you will suffer an undue hardship if you must accommodate them. Discuss these issues with the company’s legal counsel.
One last thing
Employees who don’t want to get vaccinated for whatever reason aren’t out of options. They can submit to weekly testing, probably at their own expense, but it gets them off the vaccine hook.
As for accommodations, it’s basically the same: You can require employees to wear face masks, keep physically distant from others, and allow them to continue to telecommute.
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