Many employers are being inundated with employee requests for religious exemptions to vaccine mandates. Employers who are evaluating religious exemption requests must take a nuanced approach or risk violating federal anti-discrimination statutes, such as Title VII and the ADA. Those employers hoping for clear-cut answers from the EEOC are likely to be disappointed, as the updated EEOC guidance issued on October 25, 2021, related to religious exemptions leaves more questions than answers.
There is good news, however, as employers can utilize the following four steps to help avoid costly litigation:
1. The first step an employer should take regarding religious exemption requests is to have a clearly defined policy for submitting such requests. This policy should be communicated to employees as soon as the policy has been implemented. Prior to implementation, supervisors and management should be trained on the specific duties they have in said policy. It is important that supervisors and managers are trained to begin applying the policy based upon any communication from an employee expressing they object to the employer’s vaccine mandate. Since federal anti-discrimination statutes do not contain any “magic words” that must be used, supervisors and managers should be prepared to direct employees to the exemption policy should an employee express a desire for an exemption in any form.
2. The second step is to have a dialogue with the employee. This dialogue must be part of the aforementioned exemption request policy. During the dialogue, the employer should assume that the religious belief is sincerely held. However, the EEOC guidance indicates that the employer should be on the lookout for the following items that would undermine the employee’s credibility: if the employee’s past and present actions are wholly inconsistent with the professed belief; if the employee is seeking a “particularly desirable” accommodation that is likely for non-religious reasons; if the timing of the request is suspicious; and if the employer has other reason to believe that the request is for a non-religious reason. Another item that can either support or undermine an employee’s position that they object to vaccines as part of a sincerely held religious belief is their past stance on vaccines. For example, have they gotten other vaccines since they’ve turned 18, such as the flu vaccine?
3. The third step is the employer’s evaluation of reasonable accommodation. The analysis is whether a reasonable accommodation that allows the employee to perform the essential functions of their position exists and whether the employer can implement that without undue hardship. When exploring reasonable accommodations, the employer should consider all possible accommodations, not just the one proposed by the employee. Federal anti-discrimination statutes entitle employees to a reasonable accommodation (if one exists) but do not require the employer to choose the employee’s preferred accommodation. Remote work, a private work area, masking, and alternative schedules are just a few examples of possible accommodations. If the employer selects a different accommodation, it should be transparent about its rationale.
4. Finally, the employer should be flexible to the changing nature of the COVID-19 pandemic. For example, if an employer has concerns about continuing a religious exemption due to an increase of cases in its area, it should re-engage in the second and third steps of its policy with the employee to find an accommodation that is more suitable to the changed circumstances than the current accommodation.
As you can see, handling religious exemption requests requires diligence, nuance, and flexibility. We here at Luchansky Law are constantly monitoring EEOC guidance, and other official guidance, related to the forthcoming OSHA vaccine mandate enforcement. If you and your business would like assistance in creating a vaccine mandate, a religious exemption policy, or assistance evaluating a pending religious exemption request, give us a call at (410) 522-1020 to schedule a consultation.