Religious Exemptions to COVID-19 Vaccination Mandates under Title VII and the EEOC’s Additional Guidance

With continued and widespread COVID-19 infection and the FDA’s full approval of the Pfizer-BioNTech COVID-19 vaccine, many employers have instituted COVID-19 vaccination mandates. Title VII requires employers to provide reasonable accommodations for employees with sincerely-held religious beliefs that conflict with getting vaccinated. Given that religious beliefs are difficult to disprove, many employees have taken this as an opportunity to request religious exemptions to avoid COVID-19 vaccination mandates.

The Law – Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion and requires employers to provide reasonable accommodations to employees claiming their sincerely-held religious beliefs conflict with getting vaccinated. Title VII protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have “sincerely-held religious, ethical or moral beliefs.”

Given this sweeping definition of religion, the U.S. Equal Employment Opportunity Commission (“EEOC”) has cautioned that an employer should generally assume that an employee’s request for a religious accommodation is based on a sincerely-held religious belief. Nevertheless, an employer is permitted to question the sincerity of an employee’s purported religious belief where there is an objective basis for doing so. Further, an employer is not required to accommodate an employee’s religious beliefs and practices if doing so would impose an “undue hardship” on the employer’s legitimate business interests. For the EEOC’s list of factors to be considered when determining whether an accommodation imposes an undue hardship on an employer, visit: EEOC Undue Hardship.

The EEOC’s Guidance on Religious Exemption Requests

On October 25, 2021, the EEOC updated its technical assistance related to the COVID-19 pandemic, which included additional guidance on how employers should handle religious exemption requests (Section L). Read the full EEOC update here.

The key takeaways are:

1. Employees who have a religious objection to receiving a COVID-19 vaccination must inform their employer and request a reasonable accommodation to be afforded protection under Title VII. Reasonable accommodations may include telework or reassignment.
2. If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer can make a limited factual inquiry seeking additional supporting information.
3. An employer who objectively demonstrates that it would be an “undue hardship” to accommodate an employee’s request for religious exemption to the employer’s vaccination mandate is not required to provide the accommodation.
4. An employer is not required to grant all employees’ requests for religious exemptions on the basis that it has granted some employees requests for religious exemptions. The determination is fact-intensive and specific to every request.
5. While an employer should consider the employee’s preference, if there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the religious belief without undue hardship, the employer may choose which accommodation to offer.
6. An employer has the right to discontinue a previously granted religious accommodation. If the employer learns that the belief is not religious in nature or sincerely-held, or if the accommodation becomes an undue hardship, the employer can discontinue the accommodation.

Is the Belief Religious in Nature?

The definition of “religion” under Title VII protects nontraditional religious beliefs, in addition to common religious beliefs. The EEOC’s guidance makes clear, however, that social, political, or economic views and personal preferences, including concerns about the possible effects of the vaccine do not qualify as “religious” beliefs. No major religion has publicly opposed the COVID-19 vaccine. In fact, leaders of the Jewish, Jehovah’s Witnesses, and Catholic religions have issued statements saying that their religions do not prohibit the COVID-19 vaccination, and have even encouraged it. Pope Francis has declared getting the COVID-19 vaccination “an act of love.” Even the Christian Science Church, typically opposed to vaccines of any kind, has expressed openness to the COVID-19 vaccine as a way to slow the spread of the deadly disease.

Many Christian employees are asserting that the COVID-19 vaccination conflicts with the Bible’s instruction that the human body is a temple and must be kept pure, and/or that the use of fetal cells in the development of the vaccine conflicts with pro-life beliefs. If sincerely-held, these would qualify as religious beliefs that would require accommodation under Title VII as long as such accommodation does not impose an undue hardship on the employer.

Is the Religious Belief Sincerely-Held?

The EEOC makes clear in its additional guidance that employers should generally assume that a request for religious accommodation is based on a sincerely-held religious belief. However, if an employer has an objective basis for questioning the sincerity of a belief, then the employer may make a limited factual inquiry seeking additional supporting information. The EEOC recognizes that sincerity of one’s religious belief is “largely a matter of individual credibility.”

Factors that might undermine an employee’s credibility include: (a) whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); (b) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; (c) 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 (d) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

One commonly-stated religious belief is the opposition to the purported use of fetal cells in the development of the COVID-19 vaccine. Some employers are requiring employees who seek religious exemptions to their COVID-19 vaccine mandate to complete questionnaires which ask whether the objection is the purported use of fetal cells, and if so, whether they take commonly used medicines which also use fetal cell lines, such as Tylenol, Pepto Bismol, Aspirin, Tums, Lipitor, Motrin, Ibuprofen, Ex-Lax, Benadryl, Sudafed, Albuterol, Preparation H, Claritin, Zoloft, and Prilosec OTC. Some questionnaires also ask whether the employee drinks alcohol, has any tattoos or body piercings, or eats foods that contain preservatives.

While the fact that an employee’s actions are inconsistent with his/her claimed religion or religious belief is relevant to the question of sincerity, this is not solely determinative. An individual’s beliefs and/or degree of adherence thereto may change over time, so it is possible that even inconsistently observed practices may nevertheless be sincerely-held. Click here to see the copy of form that the EEOC uses for its own employees who request a religious exemption.

Does the Religious Accommodation Impose an Undue Hardship?

If an employer demonstrates that it is unable to reasonably accommodate an employee’s request for a religious exemption to its COVID-19 vaccination mandate without an “undue hardship” on its operations, then Title VII does not require the employer to grant the employee’s religious accommodation request. The Supreme Court has defined “undue hardship” for purposes of Title VII as imposing “more than a de minimis cost” on the operation of the employer’s business. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

In addition to monetary costs, the burden on the employer’s business may also be considered as a “cost.” Courts have recognized in some specific situations that undue hardship exists where the religious accommodation would impair workplace safety or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. See, e.g., EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010) and Bruff v. N. Miss. Health Serv., Inc., 244 F.3d 495, 501 (5th Cir. 2001).

The EEOC provided the following factors for employers to consider when determining whether an employee’s request for religious exemption to a vaccination mandate constitutes an undue hardship:

(a) whether the employee works outdoors or indoors;
(b) whether the employee works in a solitary or group work setting,
(c) whether the employee has close contact with other employees or members of the public (especially medically vulnerable individuals); and
(d) The employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Employers are permitted to evaluate the value of workplace safety against the religious beliefs of an employee. Title VII does not require that the religious beliefs of an employee be prioritized over workplace safety.

Conclusion

Employers should carefully consider all requests for religious exemptions related to COVID-19 vaccination mandates. While this article focuses on employment rights and obligations under Title VII, the Religious Freedom Restoration Act and state laws may also protect religious freedom in some circumstances, so it is important to consult with an employment law attorney to navigate these complex issues.

For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.

Posted by Attorney Katherine M. Flett. Flett is a member of the litigation team whose primary focus is on assisting clients in insurance defense, business litigation, employment law, and bankruptcy matters.