Employees can claim a religious exemption to their employer’s mandatory COVID-19 vaccine policy, and many employers are struggling with the question: “What is a valid religious exemption?”
Although the Biden Administration’s executive order on vaccine mandates for federal contractors has been blocked while a court challenge makes its way through the federal courts, many employers have 1) voluntarily implemented mandatory vaccination policies, and 2) must recognize valid religious exemptions claimed by employees.
In this employer’s guide, we will cover:
Title VII of the Civil Rights Act of 1964
prohibits discrimination in the workplace based on an employee’s sincerely held religious beliefs or practices, and this applies to vaccine mandates.
Title VII’s requirements for religious exemptions to vaccine requirements are similar to the requirements for exemptions under the ADA.
When an employee raises a valid religious objection, their employer must make reasonable accommodations for the employee’s religious beliefs unless it imposes an undue hardship on the employer’s operations.
What is a reasonable accommodation?
In many cases, accommodations can be made that will not put other employees in danger – for example, the objecting employee can be required to wear a mask, moved to another location, tested regularly, or required to work remotely.
When the accommodation will cause an unreasonable difficulty or expense, however, the employer may be justified in terminating the employee.
What is a Valid Religion for Purposes of a Religious Exemption?
Title VII requires that employers define “religion” as broadly as possible. What is a religion for purposes of a religious exemption?
EEOC guidance says that the definition of religion includes “traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism,” but it also includes new, uncommon, or unfamiliar religious beliefs regardless of how many people subscribe to the belief or whether there is a formal church for believers.
The US Supreme Court has said that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
Religious beliefs can be theistic or non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”
What is not a religious belief?
“Social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII,”
but keep in mind that religious and political views may overlap.
If you are not sure whether a religion is valid, the best policy is to err on the side of caution and assume that an employee’s religious objection is sincere.
Deciding if a Religious Objection is Valid – Can the Employer Request Documentation?
“Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar,” the EEOC recommends that employers assume an employee’s request for an exemption is based on a sincerely held religious belief.
If you aren’t sure that an employee’s religious belief is sincere, however, the employer can request additional documentation.
EEOC recommends that the employer consider each employee’s request on a case-by-case basis, reviewing:
It is not likely that there would be a valid religious objection solely to the COVID-19 vaccine and no other types of vaccines.
Although there may be a sincerely held religious belief that faith and prayer will heal the body and therefore vaccines are unnecessary, this would apply to all vaccines.
Do COVID-19 vaccines contain aborted fetal cells?
One theory that has been espoused by some is that there is a valid religious objection to the COVID-19 vaccine because it contains aborted fetal cells; therefore, using the vaccine would implicitly sanction abortion.
What do the scientists have to say about this, though?
1) None of the COVID-19 vaccines contain aborted fetal cells, but
2) the Johnson and Johnson vaccine does contain a group of cells replicated in a lab “from the retinal cells of an 18-week-old fetus aborted in 1985” (not the actual cells).
What if the Employee’s Position Requires Vaccination?
If an employee’s position requires vaccination, and there are no reasonable accommodations that can be made, the employee can be terminated.
Before deciding to terminate an employee based on a claimed religious exemption, however, you should consult with your company’s attorneys.
Your Company’s Mandatory Vaccination Policy Should Reference Religious ExemptionsIf your company is requiring mandatory vaccination, you should have a written policy explaining the requirements.
This policy should also reference the possibility of religious exemptions and should:
Your company’s vaccination policy should outline a procedure for submitting a claim of religious exemption, and a form can be made available that can be maintained in the employee’s file in your HR department.
An employee is not required to request their exemption in writing, however. Any time that an employee raises a concern about an employment issue that conflicts with a sincerely held religious belief, it should be treated as an accommodation request, documented, and promptly addressed.
The Bottom Line Unless there is evidence to the contrary, your company should assume that an employee’s request for an exemption is based on a sincerely held religious belief.
When there is a question, however, the employer can inquire further, request documentation, and determine whether the employee’s claimed religious exemption is based on a sincerely held religious belief.
Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice regarding religious exemptions, your business’ COVID-19 vaccination policy, or compliance with the September 9, 2021, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors and the September 24, 2021, Safer Federal Workforce Task Force Guidance.
We also remain available to help you with all your general business, corporate, and estate planning needs.