Handling COVID-19 Religious Accommodation Requests

Wed, 09/29/21

Here Come the COVID-19 Religious Accommodation Requests: A Guide for Employers on How to Handle the Tsunami of Requests.

COVID-19 vaccinations in the workplace are the topic of the day, especially since President Biden’s recent proposal that employers with 100 or more employees mandate vaccination or weekly testing. Clearly this is a significant development, but how big a problem is this going to present to employers? Some experts are predicting that the mandates will affect approximately 100 million Americans.

Moreover, in a recent Washington Post – ABC poll, 35% of the participants said they would request an exemption on religious or medical grounds (which the Biden proposal allows for) if their employer mandates vaccines. If the polls are anywhere close to being accurate, we could be looking at 35 million people who may soon be asking their employers for an exemption from the vaccine, most of which are expected to be based on a religious belief against vaccines, or at least the COVID-19 vaccine.

Responding to this expected tsunami of religious accommodation requests may seem like an impossible task, but a well-organized plan can make the task manageable. Employers should follow a five-step process when faced with religious accommodation requests.

STEP ONE: Establish that the employee has adequately notified the employer of the accommodation request.

STEP TWO: The next and most difficult step is to determine if the request is genuine, which means that the employer must investigate whether the employee’s request is truly based on “religion” (as opposed to a belief based on politics or safety concerns) and whether the employee “sincerely” holds that belief.

STEP THREE: The employer must evaluate whether to request additional information from the employee. Based on the information received, the employer must then make the toughest decision in the process, whether other employees and guests are likely to be exposed to the virus through the unvaccinated employee, resulting in compromised workplace safety.

STEP FOUR:  The employer should now determine if there are alternative accommodations that can be offered to the employee.

STEP FIVE:  Document every step.

A detailed discussion of this step-by-step process for handling religious accommodation claims is set forth below.

STEP ONE: Is the employer on notice of a need for a religious-based accommodation for an employee?

The Law:

The EEOC, which enforces Title VII of the Civil Rights Act, states that employers are not required to provide an accommodation unless they are on notice that one is needed for religious purposes.  This is, however, a low bar for employees to overcome. The issue typically arises when employers advise employees of a particular policy or work requirement, and the employees respond indicating that an accommodation is needed for religious reasons.  The accommodation request need not be in writing and the employees need not use any “magic words,” such as “religious accommodation” or “Title VII.” 

Has the employee adequately notified the employer of the accommodation request?

In some instances, the employee will provide a detailed letter explaining the request for the accommodation. In other instances, the employee will submit the request orally. In either event, the best practice is to make sure the request is properly documented by requiring that the employee complete a “Religious Accommodation Request Form.”

STEP TWO: Does the employee have a sincerely held religious belief?

The Law:

“Religion” is not limited to the major faiths of Christianity, Judaism, and Islam. The EEOC uses the following broad definition of “religion”: “Moral or ethical beliefs as to what is right and wrong which are sincerely held. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee.

How do you determine if the religious belief is sincere?

Inquiries to the employee’s manager(s) may provide information on the legitimacy of the religious accommodation request. The questions to ask may include whether the employee has (1) previously espoused such religious beliefs (or any religious beliefs at all); (2) been complying with policy (and for what period) without expressing any objections; (3) expressed general anti mask, vaccine or testing sentiments unrelated to any religious or moral basis. 

Talk to the employee. Indicators of a non-religious motive for the accommodation request or insincerity in the religious belief include the employee focusing on the politics (“mandatory vaccinations are the result of authoritarian Democratic rule”) or safety (“they were rushed into distribution”) of vaccines or the infringement of the employee’s personal freedoms (“the Government has no right to force a vaccine on me”).

“Religious” organizations have set up websites offering (for a price) to provide religious exemption “cards” or even letters for employees to provide to employers setting forth the basis for their religious objection, see https://www.thehealthyamerican.org/religious-exemption-card. Often, these letters have the same generic language regardless of any employee’s particular beliefs.  Use of this type of letter may signal an insincere religious belief.

Is there an objective basis for requesting additional information from the employee?

EEOC guidance provides that, given the broad definition of religion, which protects beliefs with which the employer may not be familiar, “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice or observance.” However, if the employer has an objective basis for questioning either the nature or sincerity of a particular belief, practice or observance, the employer may request additional supporting information. 

STEP THREE: Can the employer deny a religious accommodation request based on “undue hardship”?

The Law:

EEOC guidelines provide that once an employer is put on notice of an employee’s sincerely held religious belief, practice or observance, the employer must provide a reasonable accommodation unless it would pose an undue hardship.

Under Title VII, courts have defined “undue hardship” as having more than minimal cost or burden on the operations of the employer. This is an easier standard to meet than undue hardship under the ADA, which is defined as “significant difficulty or expense.”

In general, a religious accommodation may cause undue hardship if it (a) is costly; (b) compromises workplace safety; (c) decreases workplace efficiency; (d) infringes on the rights of other employees; or (e) requires other employees to do more than their share of potentially hazardous or burdensome work (EEOC Compliance Manual Section on Religious Discrimination – 1/15/21).

Is there an “undue hardship”?

In the case of an employee request for a religious based accommodation to be excluded from face mask, vaccination or testing requirements, cost is likely not a factor, but exposing other employees to the maskless, unvaccinated and/or untested employee could qualify as a hardship based on (a) a compromise of workplace safety; (b) decreased workplace efficiency; and (c) infringement on the rights of other employees.

STEP FOUR: Are there other accommodations that can and should be offered?

The Law:

Faced with a religious exemption request, the employer must engage in an interactive process with the employee to determine what if any reasonable accommodations can be offered. Simply determining that the requested accommodation constitutes an undue hardship is only the first step; employers must then explore alternative reasonable accommodations.

What alternative accommodations should be considered?

The EEOC provides the following examples of alternative accommodations: (a) remote working; (b) working at a social distance from coworkers or non-employees; (c) isolation to a particular work area; (d) working a modified shift that reduces exposure to coworkers or non-employees; (e) periodic testing for COVID-19; or (e) accepting a reassignment.

STEP FIVE: Document every step.

Document everything, especially if the accommodation is denied. The documentation should include the original request from the employee, any request for additional information and supplemental information provided by the employee, and the reasons for the denial, including whether the request was found to be not “religious” or not “sincere”. The entire interactive process, including any accommodations offered, should also be documented.

If you have any questions or need any additional information on this topic, please call Arif Virji or Dawn Ross at Carle, Mackie, Power & Ross LLP – (707) 526-4200.