As employers begin to welcome employees back to the office following the long hiatus related to COVID-19, the hot topic that has arisen relates to employees who do not want to be vaccinated for religious reasons. Earlier this week, the United States Equal Employment Opportunity Commission issued new Q & A’s to guide employers through this minefield. Here are the key takeaways for employers:
· The EEO laws do not prevent employers from requiring all employees physically entering the workplace to be fully vaccinated subject to the reasonable accommodation provisions of the ADA (for disabilities) and Title VII (for sincerely held religious beliefs.)
· Employers can refuse to provide an accommodation if it imposes an undue hardship (the meaning of which might be surprising and is discussed below.)
· Employees do not need to use any “magic words” to request an accommodation
· As a “best practice,” employers should provide employees and job applicants with information concerning whom to contact, and the procedures to use, to request an accommodation.
· If employers have an objective basis to question the religious nature or sincerity of the religious belief, they may make a limited factual inquiry and employees who refuse to cooperate risk losing the claim that their employer improperly denied the accommodation.
· Title VII protects sincerely held religious beliefs but not political views or personal preferences.
· Whether an employee has a sincerely held religious belief is largely a matter of credibility.
· Employers can ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.
· As noted above, employers may deny a religious accommodation if it imposes an “undue hardship,” and this has been interpreted to mean anything more than a minimal cost.
· An undue hardship covers not only if there is direct monetary cost involved but also the burden on the business, including the risk of the spread of COVID-19 to other employees or the public, diminished efficiency in other jobs, or co-workers needing to carry the accommodated employee’s share of hazardous or burdensome work.
· An undue hardship should not be based on speculation but objective information such as whether the employee works inside or outdoors, works in group settings and has contact with other employees or the public.
· Finally, employers should keep in mind that they do not have to offer the best accommodation, only a reasonable one.
The above are helpful when navigating through the minefield that is our discrimination laws. However, nothing can take the place of sound legal advice and we caution to speak with counsel before denying an employee's religious accommodation.