Handling Vaccine-Related Religious Accommodations in California

As the battle against COVID-19 continues and more workplaces are requiring proof of vaccination, many California employers are seeing an uptick in requests for religious exemptions. Here are some tips from employment attorneys on how to respond.

Accommodations can be granted for a variety of religious beliefs, practices and observances, according to Nancy Inesta, an attorney with BakerHostetler in Los Angeles. These include not only beliefs based on traditional organized religions, but also religious beliefs that are new or not very common.

If the worker qualifies for a religious exemption, the company must then determine whether it can provide a reasonable accommodation without causing an undue hardship on the business.

Businesses should review accommodation requirements under California and federal law and have a clear plan for handling these requests.

Religious Accommodation Laws

The California Fair Employment and Housing Act (FEHA) covers sincerely held religious beliefs, observances and practices, and Title VII of the Civil Rights Act of 1964 does so at the federal level.

In general, California law and federal law are quite consistent in this area, although there are certain key differences, said Tina Tellado, an attorney with Holland & Knight in Los Angeles.

Under both state and federal law, the definitions of what constitutes a religious belief are similar, but one major difference is the standard for denying a request for a reasonable accommodation.

According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), a request can be denied if the company can show that the accommodation would impose a "more than de minimis" cost.

Under California law, an employer must show an "undue hardship" to avoid making an accommodation. According to Government Code Section 12926, an "undue hardship" would impose "significant difficulty or expense," when considering factors such as the size of the business and the employer's financial resources.

"There's a little heavier burden on California employers," according to Kate Gold, an attorney with Proskauer in Los Angeles.

Making these decisions can be very difficult, because the company must apply the law to the employee's specific situation. Businesses should make the determination on a case-by-case basis.

Interactive Process

A key step for the company is to engage in the interactive process—a back-and-forth dialogue with the employee—to determine if a reasonable accommodation is possible. During the interactive process, the employer and employee should discuss possible options based on the worker's specific needs and the employer's work environment.

A reasonable accommodation potentially could include remote work or regular COVID-19 testing. However, companies should proceed cautiously with the remote-work option.

According to guidance from the California Department of Fair Employment and Housing (DFEH), "unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public."

To meet this standard, the worker would need to request a telecommuting option.

Denying a Request

To deny a request for a religious accommodation, the company should be able to provide a legitimate business reason for doing so, according to Inesta. The reason should be based on the "reality of the workplace," not just theoretical issues, she added.

"Don't just assume that because it's a health and safety issue, that you can't accommodate the employee."

As one example, she noted that the employee might be able to work in an office alone.

"Employers need to be very careful," Inesta said. "They need to do an accurate and realistic assessment of the workplace."

If the worker isn't eligible for a religious exemption, the company has no legal requirement under FEHA to provide a reasonable accommodation, according to the DFEH guidance.

Compliance Tips

A mandatory workplace vaccination policy should clearly state how to request a religious accommodation. The process should be handled by human resource professionals or other experts with specialized training, Inesta said.

Have a form available for employees to request an exemption. The federal government offers a template, which can guide the company in this process, according to Tellado. On the form, the employee should explain the nature of the religious objection.

Review each request on an individualized basis. If there's an "objective basis" to question the employee's religious beliefs, the company can request additional supporting information, according to the EEOC guidance.

If necessary, seek legal advice for religious accommodation requests. "If employers feel on the fence, they should get legal counsel on whether they have sound reasoning," Inesta said.

Retaliation is prohibited. "Whether the request is approved or denied, the employer is not allowed to retaliate against the employee," Tellado said.

She noted that the issue of vaccine-related religious accommodation is an evolving area of law, so employers should stay informed about the latest developments.

Toni Vranjes is a freelance business writer in San Pedro, Calif.