Viewpoint: Vaccination Accommodation—Is That Religious Request Sincere?

Now that the government and employers are becoming more aggressive in requiring employees to be vaccinated against COVID-19, we are also seeing a lot of requests from employees for religious exemptions.

Guidance issued by the U.S. Equal Employment Opportunity Commission says that employers must try to accommodate employees who are unvaccinated due to a medical condition that precludes vaccination (which could include pregnancy) or a religious objection to the vaccine.

It's Complicated

Religious exemptions are complicated. Here's why.

• "Religion" is not limited to the "big three" of Christianity, Judaism, and Islam. It also includes generally recognized belief systems that are less common in the United States, and also "individualized" beliefs that are not part of any generally recognized system.

As if that weren't complicated enough, it also includes individual interpretations of generally recognized faiths. Even within a relatively structured, hierarchical faith like the Catholic Church, individuals may come to different conclusions about whether they should be vaccinated. (Pope Francis says yes, but Bishop Strickland says maybe not.)

There also appears to be diversity of viewpoint about COVID vaccinations among Jews (see here), and Evangelical Christians (see here).

• The religious belief must be "sincerely held" to be entitled to accommodation, and employers are supposed to start out with the assumption that the employee's religious belief is sincere.

And here is where the vaccine issue becomes even more complicated. Because many people still do not want to be vaccinated, a number of websites have popped up like crabgrass in your beautiful, green, carpet-like springtime lawn, providing free form letters to employees who don't want to be vaccinated and need a religious excuse.

Let's say Frank doesn't want to be vaccinated because he sincerely believes (1) the vaccines were rushed into distribution, (2) vaccination is too "Big Brother" and (3) Frank never trusted that scoundrel Bill Gates anyway.

None of these are reasons that would qualify Frank for a religious exemption from the vaccine.

However, because the religious exemption standard is so loosey-goosey, Frank might be able to claim it, whether he's an actual believer or not. First, he gets the benefit of the doubt. Second, unlike a request for Sundays off, which might be revoked if he's caught going to the Tipsy Bar & Grille instead of church, a phony request to be exempt from vaccination is less likely to be "caught."

Thus, for employers, the unfortunate answer is there is no easy way to screen out the bogus requests for religious exemption from the legitimate ones. But here are a few tips that I hope will help.

Before You Start

• Know your employees, or consult with people who do (such as their direct supervisors). Does their history indicate that they really do have sincere religious beliefs or moral/ethical beliefs that rise to the level of being "religious" in nature?

Does the supervisor know that Margaret goes to worship services, takes prayer breaks during the work day and gives every indication that she is a sincere believer? Does the supervisor know that Jason has never been to a worship service in his adult life, makes fun of his co-workers who believe in "the Great Sky Fairy" and conducts himself in his personal life as if he is his only boss?

This personal knowledge won't settle every "sincerity" question but it can help a great deal.

• Familiarize yourself with the canned forms available on the internet. This knowledge may come in handy later. Some examples are available here, here and here.

STEP ONE: Get a narrative

• Ask the employees seeking religious objections to provide a written narrative explaining their objection to the vaccine and the religious basis for their objection.

Recognize that some employees will have difficulty with this step, not because their beliefs are not sincere, but because they have literacy or language issues that make it difficult for them to put anything down in writing. For the same reason, there may be employees who use the internet forms, not because they are faking it, but because the forms express their thoughts better than they are able to.

That said, use of an internet form letter should be viewed as a rebuttable red flag.

Letters from ministers, priests, rabbis or imams are great, but don't rule out an employee's sincere belief just because the employee is unable to provide one. As already noted, not every believer belongs to a place of worship, and there is diversity of belief even within established religions and denominations.

STEP TWO: Pick the 'low-hanging fruit'

• If the narrative supports the request for religious accommodation then accept it as a valid request and go on to the next step of determining whether you can accommodate without undue hardship.

• If the narrative clearly does not support the request for religious accommodation (for example, if it shows that the employee's objection is entirely political or based on fears about side effects), then deny the request. These may be legitimate reasons to oppose vaccination, but they are not religious in nature.

STEP THREE: Talk to the 'high-hanging fruit'

At this point you should be left only with employees who are "not clearly entitled and not clearly unentitled" to religious accommodation. With this group, follow up with interviews, either in person, by videoconference or by phone. One purpose of the interviews is to be fair to employees who have legitimate religious objections but are less adept at expressing themselves in writing. And, yes, the other purpose is to ferret out employees who are faking it.

To determine whether the employee's objection is "religious" in nature, ask yourself the following:

• During the interview, did the employee continually veer off into the politics of COVID or vaccines?
  

• Does the employee's real concern appear to be the safety of the vaccines?
  

• Does the employee's real concern appear to be that mandatory vaccination is an infringement on his or her personal freedom?
  

• Does the employee seem to genuinely believe it would be a "sin" to get the vaccine?
  

• Can the employee reasonably articulate why he or she believes that vaccination would be sinful?

To determine whether the employee's religious objection is "sincerely held," ask:

• Is the objection consistent with what you or the employee's supervisors have observed from this employee in the past, when COVID vaccination was not an issue?
  

• Are there any specific facts about this employee that cause you to believe that the religious belief is not sincere? (Again, the default should be to accept the employee's belief as sincere.)

Based on what you've learned, decide whether you are going to consider the religious objection to be legitimate (in which case, go directly to "can we accommodate without undue hardship?"), or not legitimate (in which case, just say "no").

STEP FOUR: Document like the wind!

You don't have to wait until Step Four to start your documentation. Just be sure you do it!

Documenting the reasons for denials are especially important, but approvals are important, too, in case you need comparative evidence. The documentation should include the employee's request, any supporting information submitted by the employee, the reason you determined that the request was or was not "religious" in nature, the reason you determined that the employee's belief was or was not "sincere," and any other information that might come in handy in the event of a legal challenge.

Robin E. Shea is a partner in the Winston-Salem, N.C., office of law firm Constangy Brooks. She has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act. © 2021 Constangy Brooks, Smith & Prophete LLP. Reposted with permission. All rights reserved.

[SHRM members-only guide: How to Handle an Employee's Request for a Medical or Religious Accommodation to a Vaccine Requirement]