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How do workers get religious exemptions from vaccine mandates? It's complicated

·4 min read

As workers throughout the U.S. rally against COVID-19 vaccine mandates, the federal agency charged with preventing workplace discrimination has updated its guidance on how employers should navigate religious-based requests for exemptions.

The Equal Employment Opportunity Commission reiterated on Monday that federal law requires employers to consider requests for religious accommodation — but that it does not have to grant those requests if doing so would present an undue hardship. The EEOC also clarified that employers aren't required to accommodate workers' "social, political, or economic views, or personal preferences."

The guidance comes ahead of a highly anticipated White House mandate expected to increase the number of worker requests for vaccination exceptions, either for religion or disability-based reasons. That directive is expected to require larger employers to mandate either COVID-19 vaccines or weekly testing for workers.

But the EEOC's guidance may do little to sort the legal boundaries for religious accommodation requests being tested in courtrooms across the country. These cases can be complex because employers have a right to probe whether a worker's stated religious belief actually conflicts with vaccination.

“That’s essentially the $64,000 question,” says Blank Rome's Gus Sandstrom, a labor and employment lawyer. “That’s where all the complication lies.”

Title VII protects religious-based discrimination

U.S. workers hoping to qualify for a religious exemption must show they have a sincere religious belief that conflicts with getting vaccinated against COVID-19. Sandstrom explains that employers generally steer clear of challenging the worker's sincerity because it's so challenging to prove, yet often delve into the connection between the religious belief and its purported conflict with the employer’s policy.

Workers have a right to a religious exemption under Title VII of the Civil Right Act, Sandstrom explains. Aside from a narrow set of employers who aren't engaged in interstate commerce, he says, the law covers nearly all U.S. employers and therefore nearly all U.S. workers. Even without the federal law, he said, a parallel state law would almost certainly require religious accommodation. 

Protesters rallying against COVID-19 vaccination mandates gather in the street outside the Barclays Center before an NBA basketball game between the Brooklyn Nets and the Charlotte Hornets, Sunday, Oct. 24, 2021, in New York. (AP Photo/John Minchillo)
Protesters rallying against COVID-19 vaccination mandates gather in the street outside the Barclays Center before an NBA basketball game between the Brooklyn Nets and the Charlotte Hornets, Sunday, Oct. 24, 2021, in New York. (AP Photo/John Minchillo)

“Every employer should assume it applies to them,” Sandstrom says. 

The Act obligates employers to make certain accommodations, such as prayer breaks or a schedule change to attend mass, to allow workers to do their jobs while keeping their religious practices intact. Under federal law, workers with sincerely held religious beliefs may work while unvaccinated so long as the accommodation doesn't burden the employer, LaKeisha Caton, a labor and employment attorney with Pryor Cashman, told Yahoo Finance. 

“If you've determined that the employee has this sincerely held religious belief, and may be entitled to reasonable accommodation, there needs to be some sort of analysis regarding what sort of reasonable accommodation can be granted,” Caton said.

In the case of COVID-19, that accommodation could include face masks, social distancing, modified shifts, remote work, or reassignments — as long as those things don't constitute an under burden for the employer. Unfortunately, federal law doesn't define "undue burden." 

For clues, employers must look to the 1977 U.S. Supreme Court decision TWA v. Hardison. In that case, the court held that the airline made reasonable efforts to accommodate a worker's religious need to avoid working on Saturdays. However, ultimately the employer wasn't obligated to offer an alternative because doing so would impose an undue hardship.

The court found the threshold for undue hardship was anything more than a minimum burden, Syracuse University law school professor Doron Dorfman told Yahoo Finance. To determine that threshold, courts and employers will have to weigh considerations such as costs, disruptions, and effects on other employees, according to Dorfman, who testified before a House subcommittee on Tuesday.

While the high court in TWA v. Hardison provided some guidance for employers on whether they're actually required to grant the accommodation, the definition of undue burden continues to evolve.

“This now will be a rapidly developing area of the law, simply because there are so many, and so varied, requests that are coming in, that are based on religion," Sandstrom says.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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