With availability of Covid-19 vaccines, we, like many employers, opted to implement a voluntary vaccine policy, along with strong incentives for and encouragement of employees to get vaccinated.
Then, the effectiveness of the vaccine became more widely accepted. Because our nonprofit serves a population with a large percentage of vulnerable people, we made the decision to convert to a required vaccine policy. In doing so, we have observed the mandates of the EEOC to enforce this requirement subject to accommodations for medical and religious reasons.
We have had no difficulty handling the requests for medical accommodations, since they are similar to accommodations under the Americans with Disabilities Act and we have extensive familiarity with that process. However, we are frankly confounded by some of the requests for accommodation based on religion. We want to respect the religious beliefs of our employees, but some of the requests seem to be overreaching, such as the one we received saying their religious beliefs forbid getting a vaccine that has not yet received full approval by health authorities.
Can you give us some guidelines for how to handle these requests, including whether we can ask for clarifying information without violating our employees’ right to religious beliefs?
Wanting to Believe
You are not alone in your concerns about how to handle these requests. The pandemic has created many situations that human resources professionals have never had to regularly deal with. Coupled with the uncertainty that surrounds many of these issues from both a legal and a health and safety perspective, responding to these issues requires creativity, compassion, and flexibility.
To start with, you are correct that the Equal Employment Opportunity Commission (EEOC), as well as many state EE agencies, allows employers to require employees to receive the Covid-19 vaccine, subject to any requests made for an accommodation not to be vaccinated based on medical or religious grounds.
The EEOC’s guidance on how to handle a request for a religious accommodation requires the employer to evaluate and resolve the request in the following ways:
- Provide reasonable accommodation. When an employer receives information that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for that religious belief, practice, or observance. When a request for such accommodation is made, the employer should begin an interactive process to resolve any concern or question about whether the request is legitimate.
- Assume sincerity. Throughout this process, it’s important to understand that the interpretation of “religious” in this context is not limited to the theistic beliefs that most people think of when the term “religion” is used. It can also include moral or ethical beliefs and principles. Because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is sincere and well founded. If, however, an employee requests a religious accommodation, and an employer has objective information that can justify questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer is justified in requesting additional supporting information.
- Evaluate supporting information objectively. The additional supporting information you can ask for includes statements and explanations from the employee that describe their beliefs and the practices that support those beliefs, other published documents that describe the religious beliefs, and written statements from religious leaders who have observed the employee’s sincere adherence to these religious beliefs.
Obviously, the decision makers who evaluate these requests should never substitute their own personal beliefs as a standard against which to measure an employee’s sincerely held beliefs. Each request should be evaluated objectively. When there is any doubt, unless there is clear evidence that the beliefs are not genuinely held or that they are being claimed as a subterfuge to avoid vaccination, those doubts should be resolved in favor of granting the accommodation.
While the EEOC and others say that religious accommodation must be made available, a request can be denied if it would result in undue hardship. That is, for example:
- If granting the accommodation would be costly
- If it would compromise safety in the workplace
- If it would decrease workplace efficiency
- If it would infringe on the rights of other employees
- If it would violate the terms of collective bargaining
Each employer will have to evaluate the impact of having unvaccinated employees in the workplace, specific to their own workplace circumstances.
The information relating to this and other accommodations should be outlined in a formal work policy requiring employees to be vaccinated. Good resources to help you create this are BLR and SHRM.
It is important to explain the basis upon which accommodations may be requested and to clarify that requests for such accommodation initiate an interactive process. This will send a clear signal to employees that in the vaccine policy their rights are respected. It is also a good idea to have accommodation request forms available to provide the employees so that they can explain the nature of their beliefs at the time the request is made.
In summary, if an employee indicates they have a sincerely held religious belief that prevents them from complying with the employer’s requirement for vaccination, it is important to work with that employee to understand the basis for the request and to determine whether it is appropriate. Meet the request with respect, patience, and deference. Avoid skepticism and suspicion that they just don’t want to “get the shot.”
By the way, you can certainly explore with your employee why their religion says the vaccine must be officially, and not temporarily, approved before they receive it. Doing so isn’t being skeptical. It is perfectly logical to follow up on this statement to determine whether this request is based on a belief that is truly “sincerely held.”
In case you missed it…
Ask Rita: We Can Require Employees to Receive the Covid-19 Vaccine—But Should We?
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.
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