Religious Exemption to Mandatory Vaccine Policy?
By: Attorneys Dean Dietrich and Mark Sauer – Weld Riley, S.C.
Many employers are considering a mandatory vaccine policy that would require employees to prove that they have been vaccinated for the COVID-19 virus in order to come back to work. Some employers (with more than 100 employees) may be required to have a vaccine policy under the “Path Out of the Pandemic” initiative announced by the Biden Administration. We are all anxiously awaiting the Emergency Temporary Standard to be pronounced by OSHA that will give some direction on the question of a mandatory vaccine policy.
We are also seeing an increase in employees claiming a religious objection to receiving the vaccine. Under Title VII of the Civil Rights Act and similar state laws, an employer may not discriminate against an employee on the basis of religion. Employers may also be obligated to accommodate an employee if the employee shows a “sincerely-held” religious belief that would prevent the employee from being vaccinated. What it means to have a “sincerely-held” religious belief as it relates to the COVID-19 vaccine is a very challenging question that will be subject to litigation in many forums. Unfortunately, employers need to make this decision now when they get the request from the employee.
By looking at other religious exemption cases, we can discern that there are two basic principles to consider. The first is that the employee must have a “sincerely-held” religious belief in order to justify the request for an exemption. The employee does not have to show that they are a member of an organized religion or attend a place of worship although receiving a letter from a pastor or preacher would help support the request for the exemption.
The second principle is that the employer does have the right to assess whether or not the employee is making the request due to the sincerity of the religious belief or if the request is being made for ulterior reasons or a different motive. In other words, the employer must view the totality of the circumstances when determining whether a particular employee is entitled to an accommodation from a mandatory vaccine policy and can look to the timing of the request and whether the request is really being sought for other (non-spiritual) reasons.
The employer also has the right to assess whether the granting of the exemption would create an undue hardship for the business such as diminishing the efficiency of the operations, infringing on other employee’s job rights or benefits, or impairing workplace safety. Employers may receive some guidance about this from the OSHA standard in the near future. The EEOC has recently issued guidance on the religious accommodation standard for COVID vaccine issues.
As you can see from the above, determining whether an employee qualifies for an exemption from a mandatory vaccine policy will be a very challenging decision for a business. It will require an individual assessment of the sincerity of the religious belief relied upon by the employee which may include the employee providing a written statement of the basis and background for the sincerely-held belief. It will also require an assessment of the potential negative impact of granting the exemption and could require specific findings by the business why the exemption cannot be granted.
If you have any further questions about employment matters like this one, Dean and Mark are highly skilled labor and employment lawyers ready to help through all kinds of legal matters. They can both be reached at the Wausau office at 715-845-8234.