Analysis/Commentary
Following President Biden’s announcement that the federal government will be requiring employers of 100 or more workers to make COVID-19 vaccinations mandatory for their employees, the topic of who can be considered exempt because of religious beliefs gained new prominence.
Determining which beliefs are sincere and which ones are not isn’t something easy to ascertain. Making this more difficult is that no major religious denomination has said its beliefs justify an adherent refusing vaccination. In one recent case, it was reported that leaders of the Church of Jesus Christ of Latter-day Saints (the Mormons) said they would not back religious exemptions to vaccination for its members in California who requested their support.
The exemption also includes generally recognized belief systems that are less common in the United States, where our history of religious freedom has encouraged all sorts of religious groups and individualized beliefs, explains Robin Shea, a partner in the law firm of Constangy Brooks Smith & Prophete and one of the wittier members of the employers’ bar.
As a result, the religious exemption can apply to individual interpretations of faith. Even within a relatively structured, hierarchical faith like the Catholic Church, individuals may come to different conclusions about whether they should be vaccinated, she points out. Opinions about the jab also vary considerably among Jews and Evangelical Christians, for example.
This has led to the legal standard that religious belief must be “sincerely held” by the individual for them to be entitled to accommodation. However, in our religiously tolerant society, employers are expected to initially assume an employee’s belief is sincere, which some employees are prepared to exploit even when they are not sincere.
“A number of websites have popped up like crabgrass in your beautiful, green, carpet-like springtime lawn, providing free form letters to employees who don't want to be vaccinated and need a religious excuse,” Shea notes.
While there is no easy way to screen out bogus requests for religious exemption from the legitimate ones, she offers some practical advice about how companies can do that.
A useful first step is getting to know your employees, or at least consulting with people who do know them, such as their direct supervisors. “This personal knowledge won’t settle every ‘sincerity’ question, but it can help a great deal,” Shea believes.
She also suggests becoming familiar with the canned religious exemption forms currently available to employees on the Internet to help sort out phony requests for exemption. Examples can be found here, here and here.
After an employee requests a religious exemption, ask that person to provide a written narrative explaining their objection to the vaccine and the religious basis for that objection. She warns that some employees will have difficulty with this step, not because their beliefs are insincere, but because literacy or language issues make it difficult for them to put it down in writing.
Peeling Back Layers
If the narrative supports the request for religious accommodation, then accept it as valid and move on to determining whether you can accommodate them without creating an undue hardship for your business. If the narrative clearly does not support the request for religious accommodation (for example, if the objection is entirely political or based on fears about side effects), then you may be able to safely deny the request.
You still will be left with employees who are “not clearly entitled and not clearly unentitled” to religious accommodation. With this group, Shea recommends that you follow up with interviews conducted in person, by videoconference or by phone. One reason for doing this is to be fair to those employees who have legitimate religious objections but are less adept at expressing themselves in writing—and the other reason is to ferret out those who are faking it.
To determine whether the employee’s objection is genuinely religious in nature, Shea says you should determine:
• During the interview, did the employee continually veer off into the politics of COVID or vaccines?
• Does the employee’s real concern appear to be vaccine safety?
• Does the real concern seem to be that mandatory vaccination infringes on personal freedom?
• Does the employee genuinely believe it would be a “sin” to get the vaccine?
• Can they reasonably articulate why vaccination would be sinful?
To determine whether the employee’s religious objection is “sincerely held,” she says you also should ask if the objection is consistent with what you or supervisors have observed regarding the employee prior to vaccination becoming an issue. Also, are there any other specific facts about this employee that cause you to believe that the religious belief is not sincere?
Last—but definitely not least—Shea urges you to document every step in this process that resulted not just in a denial but also in approvals. Documentation should include the employee’s request, any supporting information they submitted, your reason for determining the request was or was not religious, how you determined the belief was or was not sincere, and any other information that might come in handy in the event of a legal challenge.
