Employers should avoid delving too deeply into workers’ professed beliefs when they raise religious objections to mandatory Covid-19 shots, even if they follow a faith that’s neutral toward Covid-19 vaccination or actively endorses it, employment lawyers said.
That may mean processing requests from Catholic workers, for example, despite Pope Francis publicly urging people to get inoculated. What matters for such a request is whether a worker’s belief is religious, not whether it deviates from their church’s doctrine or makes logical sense to their employer, attorneys said.
“You can have a church of one,” said Lauren Kulpa, an attorney with Perkins Coie LLP.
Requests for religious exemptions from workplace policies were relatively rare before the pandemic and focused mainly on issues like scheduling, dress codes, and grooming rules. But Covid-19 vaccine mandates require companies to be ready for workers seeking faith-based accommodations to avoid the shot.
Litigation over vaccine mandates has increased in recent months, partially due to the Biden administration rolling out Covid-19 shot requirements for federal contractors and health-care workers, and the jab-or-test rule from the Occupational Safety and Health Administration, lawyers said.
Workers filed at least 20 federal lawsuits under Title VII of the 1964 Civil Rights Act challenging employers’ handling of religious accommodations to Covid-19 vaccine mandates in the 60 days after the administration’s Sept. 9 announcement of those policies, compared to three filed in the previous 60 days, according to a Bloomberg Law review of cases.
Some workers, including
Companies, however, have a leg up on public-sector employers when it comes to dealing with religious challenges to vaccine mandates. Businesses don’t have to worry about constitutional claims against inoculation requirements like government entities do.
And employers have a powerful weapon against workers seeking Title VII religious exceptions. The U.S. Supreme Court’s 1977 ruling in TWA v. Hardison permits companies to reject a religious accommodation request if it would cause more than a trivial burden to provide.
Questioning Religious Beliefs
Employers may have that Hardison ace up their sleeves, but it’s still important for companies to inquire about workers’ religious beliefs that allegedly stand in the way of getting vaccinated against Covid-19, employment lawyers said.
Some courts, including the U.S. Court of Appeals for the 10th Circuit, have said that employers have a legal duty to engage in an interactive process with workers who seek religious exemptions.
Employers should develop a standardized request form that asks a few basic questions, primarily to get workers to articulate their beliefs and how they conflict with shot requirements, lawyers said. The EEOC published a template last month.
But companies shouldn’t rigorously question the professed sincerity of a worker’s religious belief, unless they have some objective basis to do so, attorneys said. Requesting a religious exemption from a vaccine requirement after unsuccessfully seeking a disability accommodation is one example of such objective evidence, they said.
“On the whole, it would be hard to prove insincerity because it’s a fact-intensive inquiry that would rely on a lot of circumstantial evidence,” said Nathan Chapman, a law professor at the University of Georgia who focuses on religious liberty.
VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.
‘Do What Makes the Most Sense’
Rather than rejecting a request based on a worker’s beliefs not being sufficiently religious or sincere, it’s far easier for a company to deny the request for being too burdensome under the Hardison standard, Chapman said.
However, showing that excusing a worker from a vaccine mandate is an undue hardship could be harder for employers if the U.S. ever reaches herd immunity levels, Chapman added.
Employers also should consider the costs and benefits of denying accommodation requests—even if they appear to be transparently bogus or when granting them clearly would be an undue burden under Hardison, said Patricia Anderson Pryor, an attorney with Jackson Lewis P.C.
The law might be on the side of companies that deny requests, but they still could be forced to deal with the expense and hassle of litigation, she said.
“Employers prior to this might have had one or two religious accommodation requests and suddenly they have this great conversion,” Prior said. “There is that natural frustration about that. But it does help for employers to pause, think about what they’re trying to accomplish by denying a request, and do what makes the most sense.”