COVID-19 Vaccines: Can Your Employee Purchase Evidence of a Sincerely Held Religious Belief on the Internet?

Establishing the Need for Accommodation

As a practical matter, when an employer is evaluating the range of possible accommodations in the context of a disability under the ADA, the employer often has the ability to confer with a medical professional to help guide the process. The medical professional is asked to opine as to whether the employee’s medical condition rises to the level of a disability and what reasonable accommodations may allow the employee to perform the essential functions of the job.[4] While this process is not perfect, most employers eventually receive sufficient, objective evidence that their employee does in fact have a legally cognizable disability.

When evaluating a reasonable accommodation in the context of religion under Title VII, employers typically have far less, if any, objective evidence available to them. First, there is often no religious leaders involved. The employer is left to its own devices to assess whether the employee’s religious belief, practice, or observance is, in fact, “sincerely held.” Second, the cookie-cutter nature of the internet packages may suggest to some employers that the employee is less interested in expressing a sincerely held religious belief, and more interested in avoiding the vaccine by any means possible. Anecdotally, employers report employees bragging to their coworkers about purchasing the internet package of beliefs that will allow them to avoid the vaccine. Employers are justifiably concerned about the number of employees who may remain unvaccinated, jeopardizing the safety of the remaining workforce and vulnerable patients. Healthcare employers’ efforts to prioritize the safety of their workforce and patients by mandating vaccines have faced claims of religious discrimination by employees who refuse vaccinations due to religious beliefs.[5] To protect the employer’s interests and comply with Title VII, employers should strategically address requests for religious exemptions based on the following considerations to avoid protracted litigation and liability.

Understanding the Terms “Religious” and “Sincerely Held” under Title VII 

The broad deference given to employees’ claims of a sincerely held religious belief by courts and the EEOC presents employers with some difficulty in assessing and questioning employees’ requests for a religious accommodation. However, according to the EEOC’s recently updated Technical Assistance,[6] dated May 28, 2021, employers that have an objective basis for questioning the religious nature or the sincerity of a belief, observance, or practice may request additional limited information about the underlying basis for the accommodation request.

The term “religious” belief is broadly defined by courts and the EEOC to include theistic, non-theistic, moral, and ethical beliefs as to “what is right and wrong, which are sincerely held with the strength of religious views.”[7]Religious beliefs are also described as “comprehensive” in nature as opposed to an “isolated teaching.”[8]

The difficulty in defining a religious belief is exemplified by a 2016 case out of the District of Nebraska in which the plaintiff claimed that “Pastafarianism” is a religion that adheres to the Gospel of the Flying Spaghetti Monster and whose followers wear colanders on their heads.[9] The district court found that Pastafarianism is “not a religion within the meaning of relevant federal statutes and constitutional jurisprudence” but is meant to be a satire of religion.[10] Yet, Pastafarian practitioners and churches have arisen across the globe, and Utah and Massachusetts have allowed Pastafarians to pose for their driver’s license photos with colanders on their heads.[11] If this example seems extreme, consider that a court granted relief to a plaintiff who practiced Kemetecism, a “religion with ancient roots in Egypt” that worships the sun god Ra.[12]Exotic or non-traditional religions are covered by Title VII.

Individual cases establish that the inquiry into whether the belief is “religious” focuses not on the nature of the activity or its reasonableness, but on the individual’s motivation or reason for maintaining the belief. For example, anti-vaccination beliefs held by Christian Scientists can be part of a “broader religious faith” and require a religious accommodation.[13] Anti-vaccination beliefs that are motivated by fear of the health effects of the vaccine, suspicion around the underlying science, or simply by personal preference are not religiously motivated.[14] Determining an individual’s motivation is difficult, and employers should be cautious in challenging the religious nature of the belief.

Similarly, the sincerity of a religious belief is generally presumed. Inquiries into the sincerity of the belief do not focus on the “motives or reasons for holding the belief.” Rather, it is a matter of the individual’s credibility.[15] The sincerity of religious beliefs can be supported by an employee’s oral or written statements that describe beliefs and practices and how an employee adheres to such beliefs.[16]

Questioning Employees’ Sincerely Held Religious Beliefs or Practices

At the time the employee makes a request for a religious accommodation, the employer has an opportunity to engage in an interactive discussion with the employee to understand and to verify the reason that underlies the employee’s request for a religious accommodation, and to determine whether a duty to accommodate arises. Based on the interactive process, the employer may request limited additional information about the facts and circumstances that support the request for accommodation if the employer has an objective basis for doubting either the religious nature or the sincerity of a particular belief, observance, or practice.[17] It is important to note, however, that the employee’s own written explanation may be considered sufficient, and if third-party verification is requested, a third party other than a religious official may provide the verification.[18] The reasonableness of the employer’s need to verify the information depends on the facts of the specific case.

The EEOC recommends that unless the employer has an objective basis for questioning the religious nature or sincerity of a belief, observance, or practice, the employer should presume that the request for religious accommodation is sincere.[19] Employers are less likely to successfully challenge the existence of a sincerely held religious belief in the absence of an admission by the employee that the employee’s belief is based on a reason other than a sincerely held religious belief or actual evidence of fraud or deceit by an employee claiming a religious exemption. 

Undue Hardship Defense

The undue hardship assessment provides employers with the better opportunity to evaluate a religious accommodation request. Under both the ADA and Title VII, the employer has a defense to providing accommodations if the employer can demonstrate “undue hardship.” Under the ADA, in order for an employer to prove undue hardship, the employer must prove the requested accommodation would be “an action requiring significant difficulty or expense.”[20]

In contrast, Title VII’s undue hardship defense to providing religious accommodations has been defined by the Supreme Court as requiring a showing that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden on the operation of an employer’s business.[21] Although the burden is on the employer to prove undue hardship, this is a much easier standard for employers to prove. Factors to consider include the type of workplace, the nature of the employee’s duties, identifiable costs of the accommodation in relation to the size and operating costs of the employer,[22] and the number of employees who will need a particular accommodation.

Courts have found the existence of an undue hardship based on impairments to workplace safety,[23] disruptions to operations,[24] and direct costs[25] attributable to the potential accommodation. With respect to accommodations related to vaccine mandates in particular, the EEOC suggests that the employer consider the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19, and the extent of the employee’s contact with non-employees whose vaccination status is unknown.[26] To the extent that an employee has contact with the public, including vulnerable segments of the population, the employer has a strong basis for asserting the defense of undue hardship.[27] Similarly, a greater proportion of unvaccinated to vaccinated workers in the workplace corresponds with a heightened risk of a COVID-19 outbreak in the workplace and surrounding community.[28]

With respect to the COVID-19 vaccine mandate, employers should analyze the safety risks and undue hardship presented by unvaccinated workers. Health facilities in Colorado and other states are mandating COVID-19 vaccines and subjecting workers with medical or religious exemptions to heightened testing and personal protective equipment requirements.[29] In New York, the New York Department of Health has removed the religious exemption from its vaccine mandate and imposed a COVID-19 vaccine mandate on all healthcare workers due to the magnitude of the public health safety risk.[30] The New York Department of Health’s decision to remove the religious exemption from the vaccine mandate is not without precedent. In 2019, New York enacted a law repealing the religious exemption from a New York public health law requiring children to be vaccinated against certain diseases, including measles.[31] The repeal was motivated by a serious measles outbreak in New York. The law was challenged on constitutional grounds and dismissed by the state court of appeals, which concluded in part that the repeal was a neutral law of general applicability not based upon hostility towards religion and not infringing on the free exercise of religion.[32]Based on the foregoing, it is conceivable that employers can successfully deny religious exemptions based on the magnitude of the safety risk to the public, patients, and other workers presented by employees who are not vaccinated against COVID-19.

In the context of religious accommodation, employers are more likely to be successful relying on the undue hardship defense than on challenging an employee’s sincerely held religious belief.

Other Considerations Regarding Religious Accommodation Requests

Under the ADA, an employee with a disability may not be required to comply with an employer’s safety-related standard that is job-related and a business necessity unless the employee poses a direct threat to the workplace. No direct threat assessment is required when evaluating religious accommodation requests under Title VII. Consequently, when considering religious accommodation requests, the employer need not evaluate the level of threat posed by the individual employee but can shift its focus directly to assessing whether a reasonable accommodation exists and the potential undue hardship of the accommodation to the employer.

The EEOC’s Technical Assistance clarifies that Title VII requires an employer to consider all possible reasonable accommodations with respect to unvaccinated employees.[33] The type of reasonable accommodations that should be considered under Title VII are similar if not identical to those requiring consideration under the ADA: wearing a face mask, social distancing, modified shifts, periodic COVID-19 testing, teleworking, or reassignment. It’s important to remember that employers do have a choice in the selection of a reasonable accommodation; they are not obligated to provide the employee with the employee’s preferred accommodation if there is more than one reasonable accommodation that would not pose an undue hardship.[34] In turn, when there is an alternative means of accommodation that would not cause an undue hardship, the employer must offer the alternative which least disadvantages the individual with respect to employment opportunities.[35] Similarly, an employer’s proposed accommodation will not be considered reasonable if other employees receive more favorable accommodations for non-religious purposes.[36]

Conclusion

The answer to the question is likely “yes,” an employee may be able to purchase evidence of a sincerely held religious belief on the internet. Employers who choose to challenge the sincerity of the faith or belief should proceed with caution in order to avoid the wave of religious discrimination charges likely heading the EEOC’s way. Employers that are aware of facts that “provide an objective basis” for suspecting that the request for a religious accommodation is not genuinely related to a sincerely held religious belief also can use the interactive process to gather a limited amount of additional information to better assess the request. Many employers, however, may be better served by focusing on the undue hardship defense. Employers should utilize the interactive process to gain an understanding of the employee’s concern and the type of accommodation requested to better assess whether the accommodation would pose an undue hardship on the business. A careful analysis and documentation of the interactive process, the costs of providing the reasonable accommodation requested as well as any alternative accommodations that do not cause an undue hardship should be completed. The process provides the employer with the supporting documentation for a decision that is necessary to protect the business and the workforce while fully complying with Title VII’s protection of sincerely held religious beliefs. 

Footnotes

1. Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964).
2. EEOC, Charge Statistics (Charges filed with the EEOC) FY 1997 Through FY 2020, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020
3. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (West, 2009).
4. See, e.g., JAN, Job Accommodation Network, https://askjan.org/ (If an individual has impaired kidney function related to diabetes and requires dialysis, a reasonable accommodation may be to allow for a flexible time schedule or time off for dialysis.)
5. See generally Leontine K. Robinson v. Children’s Hospital Boston, No 1:14-cv-10263-DJC (Mass. Dist. Ct. Apr. 5, 2016) (Summary judgement granted in favor of the Hospital. Hospital offered the plaintiff reasonable accommodations including time to find a new job and classified her as a voluntary resignation when plaintiff refused to accept a mandatory influenza vaccine and had requested a religious exemption. Court found that maintaining the plaintiff in her patient-facing position would compromise the safety of patients and constitute an undue hardship); But see EEOC v. Saint Vincent Health Center, Civil Action No. 1:16-cv-234 (W.D. Pa. Sept. 22, 2016) (Hospital entered consent decree for $300,000 where it fired all six employees who requested a religious exemption from a mandatory influenza vaccination requirement.)
6. EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Questions and Answers, K.12 (May 28, 2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.6
7. Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.1 (Aug. 26, 2021), https://www.ecfr.gov/cgi-bin/text-idx?node=pt29.4.1605&rgn=div5
8. Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 877 F.3d 487, 492-3 (3d Cir. 2017), citing Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981).
9. Cavanaugh v. Bartlelt, 178 F. Supp. 3d. 819 (D. Neb. 2016).
10. Id. at 830.
11. Dowdy, D., Absurdity, Sincerity, Truth and the Church of the Flying
    Spaghetti Monster: Title VII Religious Protections and Perceived Satire, 19 Rutgers J. L. & Religion 175, Spring 2018 (citing  Zorn, E., Decision to ban colander from driver’s license photo strains belief, Column, Change of Subject, CHICAGO TRIBUNE (July 12, 2016)).
12. EEOC v. Red Robin Gourmet Burgers, Inc., No. C04-1291JLR, 2005 WL 2090677 (W.D. Washington, Aug. 29, 2005).
13. Fallon at 492-3 (3d Cir. 2017).
14. Id.
15. EEOC Compliance Manual on Religious Discrimination, Section 12-1-A-2 (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#_ftn42
16. Id.
17. EEOC, supra n. 6.
18. United States v. Broyles, 423 F.2d 1299, 1302 (4^th Cir. 1970).
19. EEOC, supra n. 6.
20. Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1630.2(p)(1), https://www.ecfr.gov/cgi-bin/text-idx?SID=87f42526d70d1ffc20527be5beba97ed&mc=true&node=pt29.4.1630&rgn=div5#se29.4.1630_12
21. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
22. Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.2(e), https://www.ecfr.gov/cgi-bin/text-idx?node=pt29.4.1605&rgn=div5#se29.4.1605_12
23. EEOC v. GEO Grp, Inc., 616 F.3d 265, 273 (3d Cir 2010).
24. Cooper v. Oak Rubber Co., 15 F.3d 1375, 1380 (6^th Cir. 1994).
25. See Trans World Airlines, supra n. 21, at 84-85.
26. EEOC, supra n. 6.
27. JAN, supra n. 4.
28. See generally, Centers for Disease Control and Prevention, Science Brief: COVID-19 Vaccines and Vaccination (July 27, 2021) (discussing effectiveness of COVID-19 vaccination against SARS-CoV-2 infection and symptomatic and asymptomatic disease), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html
29. Ingold, J., The  Colorado Sun, More Colorado Health Leaders are Urging Masks, Coronavirus Vaccine Mandates (Aug. 12, 2021), https://coloradosun.com/2021/08/12/coronavirus-hospital-vaccine-mandates/
30. New York Codes, Rules and Regulations, 10 NY Comp. Code Rules and Regulations § 2.61 (Aug. 26, 2021), https://regs.health.ny.gov/volume-title-10/content/section-261-prevention-covid-19-transmission-covered-entities
31. F.F. v. State, 194 A.D. 3d 80, 82 N.Y.A.D. (Mar. 18, 2021).
32. Id. at 88.
33. EEOC, supra n. 6.
34. EEOC Compliance Manual on Religious Discrimination, Section 12-1V-A-3, https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h_25500674536391610749867844
35. Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.2(c)(2)(ii), https://www.ecfr.gov/cgi-bin/text-idx?node=pt29.4.1605&rgn=div5#se29.4.1605_12
36. EEOC Compliance Manual, supra n. 34.