By Mark Macchi, Peter Moser December 1, 2020
As we enter into the flu season and with a COVID-19 vaccine potentially on the horizon, employers may be facing questions about mandatory vaccination programs. A common concern among employers with mandatory vaccination programs is what to do when an employee requests an exemption from the program because of a sincerely held religious belief, i.e. a religious accommodation request.1
This HRW Client Alert provides a brief overview of employer obligations and options when faced with a religious accommodation request. Employers are strongly encouraged to discuss accommodation requests with counsel as the decision whether to grant such requests is fact specific and may depend on the workplace, the employee’s position, the basis for the request, and evolving science and public health concerns.
Overview of Religious Accommodation Requests
Title VII of the Civil Rights Act of 1964 and the Massachusetts Fair Employment Practices Act, Chapter 151B, prohibit employers from discriminating against employees and applicants on the basis of religion. An employee may be entitled to a religious accommodation based on a “sincerely held religious belief” unless an accommodation would present an “undue hardship” to the employer.2 The Equal Employment Opportunity Commission (“EEOC”) and Massachusetts courts recognize a broad definition of “religion,” which includes not only traditional organized religions but “also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.”3 Considering the broad interpretation of “religion” under the applicable anti-discrimination laws, what constitutes a “sincerely held religious belief” may be more expansive than the employer’s own perception of that term. In the context of a reasonable accommodation for religious purposes, the EEOC recognizes an “undue hardship” to exist if the accommodation “would require more than de minimis cost” on the operation of the employer’s business.4
Sincerely Held Religious Beliefs
Employers should be cautious about questioning an employee’s asserted sincerely held religious beliefs. It is not for the employer to decide whether a belief constitutes a “religious belief” based on the employer’s own perception of religion. This does not mean that an employer cannot engage in any type of inquiry into an employee’s asserted sincerely held religious belief. Indeed, the EEOC recognizes that “[s]ocial, political, or economic philosophies, or personal preferences, are not ‘religious’ beliefs under Title VII.”5 Thus, an employer may engage in a limited inquiry to ascertain whether the reasoning for seeking an accommodation is based in religion or, for example, a personal reference. However, an employer’s pre-conceived notions of what constitutes a “religion” should not enter the analysis.
If an employee makes a reasonable accommodation request to be exempted from mandatory vaccination, the employer may ask the employee to provide some basic information identifying what it is about the employee’s religious beliefs that conflict with vaccination.6 It may be that the employee misunderstands the components of the vaccination, and that some simple information sharing about the vaccine itself might eliminate the need for an accommodation. Or if the contents of a particular vaccine are objectionable, it may be that an alternative effective inoculation is available. If, however, the employee’s sincerely held religious belief requires exemption from vaccination, the employer should engage in an interactive dialogue with the employee to determine a reasonable accommodation that would not cause an undue hardship on the employer.
What constitutes an undue hardship is largely fact specific and will likely depend on the industry at issue and the employee’s specific role. For example, there may be a distinction between a nurse who has direct patient care responsibilities and an office clerical worker who has minimal contact with other employees or customers, when it comes to assessing undue hardship.7 Employers should engage in a thorough analysis before relying on an “undue hardship” argument for refusing to grant a religious accommodation. Notably, the EEOC has instituted actions against employers who refuse to grant religious accommodations where those employers have previously granted medical accommodations in the same context; employers should especially be cautious where they have previously granted the same accommodation when requested for a medical purpose.8
Documentation and Granting Request
When an employee requests a religious accommodation to be exempt from vaccination, the employer should be sure to document the request. If the employer seeks further information about the request, the employer should request the information in writing and/or document any discussion concerning the information sought.
Remember that the law requires an interactive process with the requesting employee. In some situations, it may be that an alternative effective accommodation is identified through dialogue, different from the accommodation initially requested.
Whether an employer approves or denies a request it should be documented in writing to the employee. If an employer denies the request, the employer should identify the reasons for its denial when writing to the employee. If an employer approves a request, the employer should describe the exact accommodation being approved and note that it is being approved based on the employee’s immediate request for an accommodation. In the communication approving the request, the employer should be sure to note that the approval applies to this specific request only, and that if the employee requires an accommodation in the future the employee will need to make a new request. This latter portion is important because circumstances may change; an accommodation that was reasonable this year may not be reasonable the next, particularly where the employee’s position or duties may change. Given the sensitive nature of accommodation requests, the information received from the requesting employee should be kept confidential.
What About the COVID-19 Vaccine?
We anticipate that the EEOC, as well as state and local authorities, will develop guidance specific to the COVID-19 vaccine and mandatory vaccination programs. Until then, however, employers should be sure to follow the above individualized accommodation process, and consult with counsel when considering implementation of a COVID-19 vaccination program. COVID-19 may present unique accommodation requestions or undue hardships that are distinct from flu season and the flu vaccination.
Employers faced with an employee’s request for exemption from a mandatory vaccination program on religious grounds should not reflexively deny the request, nor overly scrutinize the sincerity of the employee’s religious beliefs. Employers must engage in an individualized interactive process with the employee, and ultimately determine whether the requested accommodation would pose an undue hardship under all the circumstances, and whether an effective alternative accommodation might be available.
For Questions/More Information
If you have questions about an employee’s request for religious exemption from a mandatory vaccination policy, please contact Mark Macchi (firstname.lastname@example.org / 617-348-4331), Pete Moser (email@example.com / 617-348-4323), or any member of the HRW Team.
1 While this client alert only addresses religious accommodation requests, employers should be aware that they may receive accommodation requests for exemption from a vaccination program for medical reasons, as well.
2 Coultier v. Costco Wholesale Corp., 390 F.3d 126, 132 (1st Cir. 2004); Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 540 (1996) (recognizing that “in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church.”).
3 “What You Should Know: Workplace Religious Accommodation,” EEOC, issued Mar. 6, 2014 (available at https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation#:~:text=Yes.,on%20operation%20of%20the%20business).
4 29 CFR § 1605.2(e)(1).
5 See footnote 2.
6 “Questions and Answers: Religious Discrimination in the Workplace,” EEOC, issued July 22, 2008 (available at https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace#:~:text=Undue%20hardship%20under%20Title%20VII,and%20local%20laws%20may%20have) (noting that employers are entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation.”).
7 See Robinson v. Children’s Hospital Boston, No. 14-10263-DJC, 2016 WL 1337255, *10 (D. Mass. Apr. 5, 2016) (accommodation request to be exempt from flu vaccine from employee working in patient-care area would have created an undue hardship on hospital because it “could have put the health of vulnerable patients at risk.”).
8 Saint Vincent Health Center to Pay $300,000 to Settle EEOC Religious Accommodation Lawsuit,” EEOC, Dec. 23, 2016 (available at: https://www.eeoc.gov/newsroom/saint-vincent-health-center-pay-300000-settle-eeoc-religious-accommodation-lawsuit).