As more employers implement mandatory COVID-19 vaccine policies, employee objections to COVID-19 shots are becoming increasingly common. Like other mandatory vaccine policies, employer-mandated COVID-19 programs must manage and, in some instances, provide reasonable accommodations because of an employee’s sincerely held religious belief, practice, or observance, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. To help employers navigate this process, here are three steps they should take when responding to requests for religious exemptions.
Determine if objections are based on personal choice or sincerely held religious beliefs. An employee must have a sincerely held religious belief, practice, or observance that prevents the employee from receiving the vaccine to receive a reasonable accommodation. This means beliefs that are sincerely held with the strength of traditional religious views, and does not include personal or philosophical disagreements with receiving the vaccine. If an employee requests a religious accommodation and an employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a particular belief, practice, or observance, employers should request additional supporting information.
Engage in an interactive process with employees to determine whether reasonable accommodations are warranted. Exemptions do not mean employees get to skip the vaccine and return to work as normal. Discuss with employees what accommodation would be suitable for them and your organization. Carefully document the interactive process you take when determining accommodations.
Make decisions on the accommodation requests. Consider your work environment – you may require employees to wear masks, submit to regular testing, or reassign them to vacant positions, among other options. You may find you have to exclude employees from the workplace, or you may determine granting certain requests would be an undue hardship for your business. The determination of whether a specific request would pose an undue hardship is fact-specific and may change as your workplace evolves. Remember, courts define “undue hardship” for religious accommodations as having more than a de minimis cost or burden on the employer. This is a lower standard to meet than the undue burden standard under the ADA, which is “significant difficulty or expense.” Finally, note that some state laws (e.g., California) may have a higher standard for proving undue hardship than under federal law.
Experienced employment counsel should help you evaluate these important decisions.
Ulmer’s Employment & Labor Practice Group is available to provide strategic advice and counseling to employers navigating the challenges of the COVID-19 pandemic. Please reach out to our attorneys if you have any questions.
The information provided in this insight speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. Please continue to follow these updates at ulmer.com. This insight was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this insight, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Joseph J. Brennan at jbrennan@ulmer.com.