COVID-19 vaccinations in the workplace are obviously a hot topic, especially in light of President Biden’s recent proposal that employers with 100 or more employees mandate vaccination or weekly testing. Most vaccine mandates, including the Biden proposal, include a religious exemption. But can someone just claim a religious exemption and that be it? Who decides whether it is legitimate or sincere? And what does the person seeking the exemption have to show? Unfortunately, how to handle a religious exemption is not an exact science. But there are several points to help guide an organization through that labyrinth.

Mandating COVID-19 Vaccines

Employers can mandate vaccines. Employers can also specifically ask if an employee has been vaccinated, but if the employee says no you should refrain from asking too detailed questions as to why as it could elicit disability-related information. But one of the main issues an employer may have to wrestle with any vaccine mandate are the procedures and parameters for recognizing a religious exemption.

Religious Exemption

Religious exemptions, as a general matter, have a long history in this country that values religious freedom. A company that provides no religious exemption will likely run afoul of the religious accommodation requirements under Title VII and have their mandate challenged. The standard for a religious exemption is, quite simply, only the sincerity of the religious belief. Even if the religious claim makes little sense or is not the actual teaching of a recognized religious group or denomination, what matters is the individual’s sincerely held belief. 

The EEOC guidance recommends that employers make reasonable efforts to accommodate employees with sincerely held religious beliefs to comply with Title VII as long as it does not cause an undue burden on the company. The approach is obviously similar to the ADA standard and requires individualized attention through the interactive process. The EEOC guidance provides that employers should accept an employee’s claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption. The EEOC identifies four factors for an employer to consider when evaluating the sincerity of an employee’s religious exemption claim:

1. Whether the employee has acted in a way that is inconsistent with the claimed belief;

2. Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;

3. Whether the timing of the request is questionable; and

4. Whether the employee has other reasons to believe that the employee is seeking the benefit for secular reasons.

It may prove difficult to snuff out dishonesty among those who may feign religion to avoid the vaccine. Most major religious denominations in the United States do not oppose the vaccine, but that does not preclude an individual’s personal, subjective belief against taking the vaccine. Some religious groups, such as Christian Scientists, are known for not being receptive to vaccinations, which long predates the COVID-19 pandemic, but even they have expressed openness to the vaccine for the current pandemic.

This makes it difficult for employers to say no to an exemption applicant, but there should still be thoughtful enforcement mechanisms to try and best evaluate the genuineness of a claim. In addition to the EEOC considerations to evaluate sincerity, you can ask for some type of proof or demonstration from the applicant. That may include a letter from a faith leader or some more-than-cursory explanation from the applicant. Another question to ask the applicant is whether he or she has refused vaccinations or medical treatment before on religious grounds.

Remember that you cannot limit a religious exemption’s reach to only organized, well-recognized religious denominations because the individual’s subjective belief may be just as sincere. But you can require that the exemption request be based on a sincerely held religious belief, rather than just a philosophical or political belief. Where that line is to be drawn, however, is admittedly very difficult to determine. A secular company may not be equipped to delve into the depths of an individual’s theology in the religious versus philosophy spectrum. The EEOC defines religious “very broadly” for Title VII purposes.

Depending on the size of your organization, you could designate an HR representative or possibly put together a committee to evaluate requests for religious exemptions to provide a collective, consistent evaluation. Critical questions to consider, besides whether the belief is sincere rather than completely concocted, are the impact on other employees’ safety, workplace productivity, expense, and whether the exemption would cause some tasks to have to be shifted. And you can institute other requirements as part of allowing the religious exemption. The U.S. military, for example, where vaccination is mandatory provides a religious exemption, but mandates counseling to the individual about the vaccine and how the refusal may impact their assignments, which may include deployment. Other safety restrictions, such as social distancing and use of face coverings, can be considered as alternatives if an employee has a religious objection to the vaccine.

But if the requested exemption truly causes an undue burden on the employer, you can consider standing your ground and denying the exemption. The EEOC factors to consider in evaluating an undue burden are whether the accommodation is too costly; whether it would decrease workplace efficiency; whether the accommodation infringes on the rights of other employees; whether it requires other employees to do more hazardous or burdensome work; whether the accommodation conflicts with another law; and whether it compromises workplace safety.

A Few Recent Court Cases …

In Bridges v. Hous. Methodist Hosp., a hospital mandated vaccinations or employees would be terminated. Although not specifically discussed in the case, the mandate apparently did not have a religious exemption. The plaintiffs were acting pro se and brought a wrongful termination action, not a claim under Title VII or the ADA, which the court dismissed and rejected. There are several cases involving students, some of which honor the requirement for a religious exemption. In Dahl v. Bd. Of Trustees of Wester Mich. Univ., the court granted an injunction against the requirement for WMU student-athletes to be vaccinated, finding at least at the preliminary stage, that WMU was prohibited from mandating vaccinations, but could require plaintiffs to submit to weekly or more frequent testing and could require the wearing of face coverings. In Magliulo v. Edward Via College, a medical school required students to receive vaccinations but then changed its policy a few times to allow for a religious exemption. The court enjoined the school’s mandating vaccination as a condition of enrollment, based on large part because of Louisiana state laws allowing for religious exemptions. We can expect more legal challenges to vaccine mandates, so hopefully, guidance from the courts will continue to develop to assist employers.

Applying a religious exemption to vaccine mandates is not an easy task, but you can employ some reasonable inquiry and enforcement mechanisms to balance the multiple competing interests involved. Employers would be well served to consult counsel when attempting to navigate through such religious exemption requests.