With the coronavirus pandemic still raging and the effort to return to business as “new normal,” many employers have implemented or are considering mandatory vaccination policies. While initially reluctant due to the lack of clarity around vaccination mandates, employers are now emboldened to enact such policies in light of the Biden administration’s sweeping vaccine mandates, as well as the EEOC’s updated guidance on mandatory vaccination policies. As expected, employers are seeking guidance regarding how to handle requests for exemptions and accommodations, handling non-exempt employees who refuse to get vaccinated, and whether the accommodations sought are creating an undue hardship on their businesses.
On May 18, 2021, the EEOC released updated guidance for their FAQs, which clarified its previously nebulous position on employer-mandated vaccination policies. (1) The EEOC now makes it clear that mandatory COVID-19 vaccination policies are permissible if they are job-related and consistent with business necessity based on safety concerns arising from COVID-19. Additionally, the new guidance expressly states that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to reasonable accommodations, one of which is a religious exemption.”
Mandatory vaccination challenges based on religious exemptions seem to be the trend, especially considering that prior challenges based on emergency use authorization status were rendered moot by the FDA’s approval of the Pfizer vaccine in August 2021. For example, hundreds of D.C. fire and EMS employees have requested religious exemptions, and twenty-six thousand Los Angeles police officers are expected to seek religious exemptions. Individuals claiming to be religious leaders are providing “religious exemption templates” (often, for a fee). Interestingly, individuals who received various vaccines in the past, for example, the flu vaccine, are now claiming religious exemptions to the COVID-19 vaccine. So, is it faith or faux?
Contrary to popular belief, there is nothing in religious dogma that specifically and directly prevents parishioners or worshippers from being vaccinated. In fact, as part of a worldwide effort to stem the uptick in new infections and eradicate the virus, most religious leaders have been encouraging their worshipers to get the vaccine. In a recent video message, the Pope urged people to get vaccinated, saying that vaccines “bring hope to end the pandemic, but only if they are available to all and if we collaborate with one another.” (2) In 1952, Jehovah’s Witnesses issued an edict that vaccinations “[do] not appear to us to be in violation of the everlasting covenant made with Noah, as set down in Genesis 9:4, nor contrary to God’s related commandment at Leviticus 17:10-14.” (3) Several Jewish leaders have encouraged the vaccine, and Muslim leaders have issued definitive statements and fatwas describing how immunization is consistent with Islamic principles. After receiving his vaccine, His Holiness the Dalai Lama urged people to “have courage” and get the vaccine for the “greater benefit of the world.” (4)
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an employee’s religion (as well as race, color, sex, national origin, or protected activity), in the hiring, promotion, discharge, compensation, or other terms, conditions, or privileges of employment. (5) According to the EEOC, Title VII defines religion to include “’all aspects of religious observance and practice, as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. (6) “Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is religious, for Title VII purposes, if it is religious in the person’s “own scheme of things, such as, it is a sincere and meaningful belief that occupies a place in the life of its possessor parallel to that filled by God.”
According to EEOC guidance, Title VII requires employers to accommodate religious beliefs that are “sincerely held” unless doing so creates an undue hardship. “Whether or not a religious belief is sincerely held by an applicant or employee is… generally presumed or easily established… and is largely a matter of individual credibility.” (7) “Factors that – either alone or in combination - might undermine an employee’s credibility include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is likely to be sought for secular reasons; whether the timing of the request renders it suspect; and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.” The EEOC cautions that “none of these factors is dispositive.” For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence - may change over time. Therefore an employee’s newly adopted or inconsistently observed religious practice may still be sincerely held.
The question then becomes – is a religious belief justifying an exemption sincerely held? Or is it merely convenient because an employee simply does not want to get the vaccine for other reasons (for example, a belief that he was forced to be a human guinea pig)? (8)
In an issue of first impression, a Delaware County Court of Common Pleas Judge ruled that merely having a “sincerely held religious belief” is insufficient to prove discrimination based on the denial of a religious exemption argument to a mandatory vaccination policy. In Dominic Beck v. Williamson College of Trades In Media, et al., (9) the plaintiff, a student at the private Williamson College, challenged the school’s failure to provide him a religious belief exemption from the mandatory COVID-19 vaccination policy. Before the COVID-19 pandemic, the school had an immunization policy requiring students to obtain certain vaccinations prior to matriculation, with the ability to request an exemption from the policy for certain reasons. Plaintiff, who identifies as Catholic, complied with the school’s vaccination policy prior to matriculating in Fall 2019 and obtained vaccines for meningitis, measles-mumps-rubella, tetanus and hepatitis-B. When the COVID-19 vaccine became available, the school included the vaccine in its vaccination policy, with the same ability to request an exemption. If an exemption was requested, a small group of school executives evaluated each request and issued a determination.
The plaintiff requested an accommodation to the vaccination policy based on his sincerely held religious belief, arguing that the COVID-19 vaccine was developed from aborted fetal cell lines, and as such, obtaining the vaccine would violate his Catholic teachings. However, because he failed to show that the Catholic faith expressly prohibits practitioners from obtaining the COVID-19 vaccine, his request was summarily rejected, and he was prevented from further attending classes until he was vaccinated. In his petition for preliminary injunction, the plaintiff argued that in denying his request for an exemption and preventing him from continuing to attend classes, the school discriminated against him because of his religion, in violation of Pennsylvania Human Rights Law.
In the September 14 ruling denying his Petition, Judge Eckel held that to establish a religious discrimination claim under the PHRA and/or PFEOA, whether under Title II (public accommodations) or Title VII (employment); a plaintiff must “establish – not merely recite or aver – that the belief he holds, from which his objection to the vaccine requirement derives, is sincerely held and religious. He must also show that the non-discriminatory reason for defendants’ adverse action against him is a pretext for intentional discrimination against him.” The court held further that “[the school] offered a lawful, non-discriminatory reason for the [vaccination] policy (to protect the health and safety of its students and staff during a global pandemic and to better ensure the continued operations of the school during the 2021-22 school year) and demonstrated that it applied the policy in the same fashion, regardless of the identity or faith of the applicants who requested to exception.” The court also denied the plaintiff’s petition on a procedural basis holding that he failed to exhaust administrative procedures.
There have since been several lawsuits making similar religious beliefs arguments, and we can expect there to be several more. To reduce litigation and liability, employers should consider taking the following steps:
- Stay up to date on federal, state and local laws.
- Establish a review committee, if feasible, to implement the vaccine policy, review religious exemption requests and ensure that the criteria are applied consistently and objectively in making determinations. The committee should ideally consist of health and safety professionals, legal counsel and human resources.
- Delineate clear and readily accessible guidelines and procedures for submitting requests and outline the review and appeal process, if applicable.
- Like any other request for an accommodation, review each request on a case-by-case basis, and understand the obligations to engage in a fair and interactive process.
- Review anti-discrimination and sensitivity trainings to determine if updates are required, or whether additional training is necessary.
- In the event of a denied request, have an alternative plan of action in place to protect vaccinated and unvaccinated employees, including but not limited to, the use of masks, social distancing and regular testing.
- Document everything!
- What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)
- Pope Francis urges people to get vaccinated against Covid-19 - Vatican News
- Questions From Readers — Watchtower ONLINE LIBRARY (jw.org)
- Video Dalai Lama speaks out on COVID-19 - ABC News (go.com)
- Title VII of the Civil Rights Act of 1964
- Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov) citing Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981); Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Welsh v. United States, 398 U.S. 333, 339 (1970); United States v. Seeger, 380 U.S. 163, 166, 176 (1965).
- Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov) citing Cf. Moussazadeh v. Tx. Dep’t of Crim. Just., 703 F.3d 781, 790 (5th Cir. 2012); Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013); and Davis v. Ft. Bend Cnty., 765 F.3d 480, 486 (5th Cir. 2014) (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994); Cunningham v. City of Shreveport, 407 F. Supp. 3d 595, 609-10 (W.D. La. 2019); and EEOC v. IBP, Inc., 824 F. Supp. 147, 151 (C.D. Ill. 1993).
- Legaretta v. Fernando Macias, et al, Case No. 2:21-cv-00179 (D.N.M. Feb. 28, 2021)
- Dominic Beck v. Williamson College of Trades In Media, et al., Case No. CV-2021-007215 (Court of Common Pleas of Delaware County, Pennsylvania 2021)