RELIGIOUS VACCINE EXEMPTIONS IN THE WORKPLACE

FREQUENTLY ASKED QUESTIONS

What constitutes a religious belief?

Short Answer:  Civil Rights Act of 1964 (“Title VII”) broadly defines “[t]he term ‘religion’ [as] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).

Long Answer:  The statutory definition of “religion” has been the source of much litigation.  The Supreme Court clarified the definition of “religion” by creating a standard for determining whether a belief is religious: “does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” United States v Seeger, 380 U.S. 163, 184, (1965). In creating this standard, the court aimed to differentiate between religious views (which are covered by the statute) and “essentially political, sociological, or philosophical” ideas (which are not). Id. at 165.

The Supreme Court later applied the same test in Welsh v United States.  In that case, the Court clarified that religion does not require belief in God or divine beings. Instead, the Court found that nontheistic beliefs could also be religious within the meaning of Title VII as long as the belief  “occup[ies] in the life of that individual ‘a place parallel to that filled by God’ in traditionally religious persons.” 398 U.S. 333, 340 (1970).

Later, the Third Circuit identified three “useful indicia” to determine the existence of a religion. “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.” Africa v Commonwealth of Pennsylvania, 662 F.2d 1025 (1981).

The EEOC’s Questions and Answers: Religious Discrimination in the Workplace has also attempted to define “religion.”  The document explains religion in the context of Title VII as follows:

Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, 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.

An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

What constitutes a valid religious belief?

Short Answer:  It is unlawful for an employer to question the accuracy of a sincerely held religious belief.  Hence, most any belief is valid under Title VII.  The biggest hurdle in securing a religious accommodation pursuant to Title VII is not whether the belief is correct, but whether it is sincerely held.

Long Answer:  Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.” Seeger, 380 U.S. at 185.  However, the Court stated in Seeger and has continued to reiterate that no court should inquire into the validity or plausibility of the beliefs; instead, the task of a court is “to decide whether the beliefs professed [] are sincerely held and whether they are, in [the believer’s] own scheme of things, religious.” Id. at 185.  The religious belief need not be “correct” or even “plausible.” It is unlawful for the employer to questions the correctness of a sincerely held religious belief.  Furthermore, Title VII protects a sincerely held religious belief even if the employee’s spiritual advisor (such as a pastor) or the affiliated religious sect (such as Protestant) disagrees with it.  Emp’t Div., Dep’t of Human Res. of Or. v Smith, 494 U.S. 872, 887 (1990); U.S. E.E.O.C. v Consol Energy, Inc., 860 F.3d 131 (2017).

Can the employer inquire into the sincerity of the employee’s belief?

Short Answer:  Yes but in a very limited manner.  When an employer has a genuine uncertainty about the basis for the employee’s accommodation request, it is permitted to make a limited inquiry to determine if the belief or practice is religious and sincerely held and gives rise to the need for accommodation.

Long Answer:  Typically, an employer has no reason to question whether the practice at issue is religious or sincerely held.  However, when an employer has a genuine doubt about the basis for the employee’s accommodation request, it is permitted 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 accommodation.

The EEOC’s Questions and Answers: Religious Discrimination in the Workplace lists factors that might weaken an employee’s claim that he or she sincerely holds the religious belief at issue as:

1. whether the employee has behaved in a manner markedly inconsistent with the professed belief;

2. whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

3. whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and

4. whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The issue of “sincerely held” is a totality-of-the-circumstances assessment.  Therefore, none of the above-listed factors are dispositive of the issue of sincerity.  For example, although prior inconsistent conduct is relevant, an individual’s beliefs and degree of adherence may evolve.  Thus, a requestor’s newly adopted or inconsistently followed religious practices can qualify as “sincerely held” under Title VII. EEOC v Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). Furthermore, “an employer [] should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of [the] religion.” Questions and Answers: Religious Discrimination in the Workplace. See also, Commission Guidelines, 29 C.F.R. § 1605.1.

If an employer makes a reasonable request for information regarding the need for accommodation, a requestor should respond.  An employee who refuses to cooperate with an employer’s requests for valid information may deprive the employer of the information necessary to resolve the accommodation request and potentially forfeit the requested accommodation.

What constitutes notice of a need for an accommodation?

Short Answer:  A person requiring a religious accommodation must give the employer notice of the need.  No magic language is required to put the employer on notice.  However, the requestor must inform the employee that an accommodation is needed because a conflict exists between religion and work.

Long Answer:  The requestor does not need to use specific language, mention Title VII, or use the words “religious accommodation” to request a religious accommodation. However, an applicant or employee seeking a religious accommodation must make the employer aware that (1) accommodation is needed, and (2) the employee requests accommodation due to a conflict between religion and work.

The requestor must also explain the belief or practice’s religious nature and not assume that the employer will already know or understand it. Seshadri v Kasraian, 130 F.3d 798, 800 (7th Cir. 1997); Chrysler Corp. v Mann, 561 F.2d 1282, 1285 (8th Cir. 1977); Redmond v GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978).  For example, courts have ruled against employees who refused to cooperate with an employer’s requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. Macon v J.C. Penney Co., 17 F. Supp. 3d 695 (N.D. Ohio 2014).

On the other hand, the employer should not assume that a request is invalid because the associated religious beliefs or practices are unfamiliar.  Instead, the employer should, in limited fashion, request that the employee explain the practice’s religious nature and how it conflicts with a work requirement.

What constitutes reasonable accommodation?

Short Answer:  A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with the religious belief but that does not cause undue hardship for the employer.

Long Answer:  Title VII (42 U.S.C. § 2000e-2(a)(1)) requires employers to adhere to certain employment standards and makes it unlawful for an employer to discharge an individual based upon that person’s religious beliefs or practices. Once an employer is on notice that a religious accommodation is needed, Title VII requires that the employer “make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” EEOC v Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008); 42 U.S.C. § 2000e(j).  Title VII requires only reasonable accommodation, not “satisfaction of an employee’s every desire.” Rodriguez v City of Chicago, 156 F.3d 771, 776 (7th Cir. 1998).

The accommodation requirement is “plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.” Protos v Volkswagen of Am., Inc., 797 F.2d 129, 136 (3d Cir. 1986).  A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with the religious belief.  An employer violates the “reasonable accommodation” duty where an employee can prove (1) a bona fide religious belief that conflicts with an employment requirement; (2) notice to the employer of this belief; and (3) discipline for failure to comply with the conflicting employment requirement. Firestone Fibers, 515 F.3d at 312.

However, an employer may have an “undue hardship” defense for failure to provide accommodation.  This defense requires a showing that the proposed accommodation in a particular case poses a material cost or burden.  The EEOC lists factors relevant to a finding of undue hardship as “the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will [] need a particular accommodation.”  Costs relevant to “undue hardship” include the direct monetary costs and the burden on the employer’s business. For example, according to the EEOC, undue hardship exists where the accommodation “diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”  Finally, the employer must also assess whether the proposed accommodation conflicts with another law.

Finally, an employer violates an employee’s religious rights if it provides more favorable accommodation to other employees for non-religious purposes. For example, in the case of Memorial Hospital, the lawsuit alleged it treated the employee’s request for religious accommodation to wear a mask rather than receive a flu vaccine differently than the same request made by employees for medical, rather than religious, reasons. EEOC v Memorial Healthcare, No. 2:18-cv-10523 (E.D. Mich. Feb. 13, 2018).  Therefore, an employer that provides a medical accommodation to a mandatory vaccination does so without undue hardship, and the employer can make similar accommodation for religious exemptions.

Must I provide support from a spiritual advisor such as a pastor or priest?

Short Answer:   No.

Long Answer:  Religious beliefs can be unique to an individual; thus, evidence from others is not always necessary. However, letters of support from a spiritual advisor may help bolster the “sincerely held” element, expedite the requested accommodation, and eliminate the employer’s justification in conducting an inquiry. Furthermore, courts have ruled against employees who refused to cooperate with an employer’s requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. Macon v J.C. Penney Co., 17 F. Supp. 3d 695 (N.D. Ohio 2014).

Am I entitled to compensation if I am harmed by a mandated vaccine?

Short Answer:  Maybe.

Long Answer:  A vaccine-related injury sustained from an employer-mandated vaccine may qualify for a “work-related injury” pursuant to workers’ compensation law.

Regarding EUA COVID-19 vaccines, workers’ compensation cases have not been tested in courts.  Workers’ compensation liability will evolve as COVID-19 cases are litigated and as state lawmakers define COVID-19-specific rules in the context of workers’ compensation claims.

Aside from workers’ compensation, can I get compensation for harm caused by a mandated vaccine?

Short Answer:  Maybe.

Long Answer:  The Vaccine Injury Compensation Program (the “VICP”) is a federal program developed in the 1980s to compensate people with specific reactions and injuries caused by certain vaccinations. The VICP compensates for pain and suffering,  past and future lost wages, and medical expenses.  However, only about 33% of VICP claims receive compensation.  Currently, COVID-19 vaccines are not compensated through the VICP.

Workers’ compensation benefits typically pay around 2/3 of the employee’s actual lost wages.  A person receiving workers’ compensation cannot “double-dip” and receive full compensation from the VICP.  However, the person can seek the difference between the workers’ compensation benefit and the actual lost wages from the VICP.  If the person incurred costs for treatment of the vaccine injury, the VICP will reimburse the costs. The VICP will only reimburse the portion paid, or due to be paid, by the injured person. The VICP does not reimburse any amount paid by insurance companies or Medicaid.

Regarding emergency use COVID-19 vaccines, the federal Public Readiness and Emergency Preparedness Act (the “PREP Act”) may provide immunity from certain types of liability arising from the administration of vaccines to “covered persons” under the Act. In addition, this immunity may extend to certain private-sector employers as specified under the U.S. Department of Health & Human Services’ advisory guidance.  Consequently, an employer providing a COVID-19 vaccine onsite may be immune from claims of injury or loss arising from the administration of a COVID-19 vaccine, except in instances of “willful misconduct.”

The PREP Act also provides a compensation program, the Countermeasures Injury Compensation Program (the “CICP”), to eligible individuals who suffer serious injury from one of the protected countermeasures, which currently includes emergency use COVID-19 vaccines.