As California employers are grappling with whether to require their workforce to get the COVID-19 vaccine, some employees are raising their religious beliefs to opt out of employer-mandated vaccinations. However, it is just not as simple as an employee exclaiming, “vaccinations are against my religious belief!” The disinformation and suspicion around the COVID-19 vaccine has taken requests for religious exemptions to new heights in the workplace, leaving many California employers wondering: How should I respond to an employee’s religious objection to getting the COVID-19 vaccine?
Big Picture: Employers Must Reasonably Accommodate Employees with Sincerely-Held Religious Beliefs or Practices
Existing California Department of Fair Employment and Housing (DFEH) guidance provides that California employers may require applicants and employees to be vaccinated, if: (1) the vaccine is FDA approved, including those under an Emergency Use Authorization; and (2) the employer implements policies and practices requiring or encouraging vaccinations that do not discriminate against or harass applicants or employees based on any protected characteristic, including disability, perceived disability, or sincerely held religious belief.
An employee may request, based on a sincerely held religious belief or practice, to remain unvaccinated, refuse to get COVID-19 tested, or refrain from wearing a mask. In these circumstances, employers are required to engage in the good faith interactive process with the employee to determine whether a reasonable accommodation exists, and may need to reasonably accommodate the employee’s sincerely held religious belief, unless an undue hardship would result.
Let’s break this down.
Threshold Question: Is the Employee’s Objection Based on a “Sincerely-Held Religious Belief” or Personal Choice?
Defining “religion” when assessing a request for religious accommodation is not an easy feat. Employers are advised to refrain from unilaterally determining whether an employee’s professed belief is in fact a religion. Generally, “religion” is broadly defined and can include traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism.
Religion also includes beliefs that are new, uncommon, not part of an organized religion or formal church, or only held by a small number of people. Some practices are religious for one person, but not for another, such as not working on a Saturday or Sunday. Some religious beliefs may only be held by a minority of members of a larger organized religion, but are nevertheless rooted in specific religious teachings and beliefs.
However, when it comes to mere personal preferences, an employer is not legally obligated to accommodate an employee who objects to receiving a vaccination because they do not “trust that the vaccine is safe.” California guidance is clear: if an employee does not have a sincerely held religious reason for declining the vaccine, the employer need not accommodate the employee’s personal preferences, or social, political or economic philosophies.
Example #1: Veganism Is Not Sufficient Grounds to Support a Religious Accommodation Request
In Friedman v. Southern California Permanente Medical Group (2002) 102 Cal.App.4th 39, a temporary employee was offered a permanent position by Kaiser Permanente contingent on his receiving the mumps vaccine. The employee refused the vaccination based on his beliefs as a vegan and Kaiser retracted its offer. The employee sued alleging religious discrimination. The court dismissed his claims, finding that veganism is not a “religious creed” under California discrimination law. A “religious creed” includes “any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions.” Although the employee argued that his commitment to a vegan lifestyle occupied a place in his life “parallel” to that of traditionally recognized religions, the Friedman Court disagreed, finding there is no “apparent spiritual or other worldly component to plaintiff’s beliefs…While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.” Similarly, the law does not protect beliefs merely because they are strongly held.
What if I Doubt My Employee’s Religious Accommodation Request?
Because an employee’s religious belief does not need to be plausible, reasonable, religiously correct, or commonly shared by the employee’s religious sect, employers should presume an employee’s request for a religious accommodation is based on a religious belief or practice, unless if the employer has an objective basis for doubting the employee’s religious accommodation request. Certain factors may create doubt about an employee’s request, particularly as to whether it is sincerely held:
- if the employer has reason to believe the employee is not being honest about needing a religious accommodation;
- if the employee has behaved inconsistently with the declared belief (e.g., employee rejects the COVID-19 vaccine but regularly takes influenza vaccines; but be careful, employee beliefs and practices can change over time);
- if the timing of the religious accommodation is questionable (e.g., employee adopted the belief only in response to the COVID-19 vaccine mandate).
While engaged in the interactive process, employers may ask objective, general questions to determine whether the employee’s belief is religious and sincerely held. Employers may also ask for documentation. However, once the employee provides supporting evidence, employers should proceed with extreme caution and seek legal advice before requesting additional information or denying an accommodation if they have lingering doubts as to the sincerely held religious belief. The federal Equal Employment Opportunity Commission (EEOC) says that employees should be given the benefit of the doubt.
As with any interactive process to determine whether a reasonable accommodation exists, employers should document their conversations with the employee.
What Is a Reasonable Accommodation?
Generally, a reasonable accommodation must eliminate the conflict between the employee’s sincerely held religious belief and practices and the COVID-19 vaccine. Examples of reasonable accommodations include:
- mandating regular weekly testing and masking;
- job restructuring to allow for remote work for someone who is unvaccinated to work apart from; others who have been vaccinated;
- job reassignment; and
- unpaid leave.
However, unless requested by the employee, an accommodation to is not deemed reasonable if it results in the employee being segregated from other employees of the public.
Does The Religious Accommodation Request Cause an Undue Hardship on Business Operations?
An employer may refuse to provide a reasonable accommodation, and subsequently exclude the employee from the workplace, if complying with the specific religious accommodation request would pose an undue hardship on the operations of an employer. Undue hardship is a burden that is more than minimal, and is difficult to prove; it can include:
- compromising workplace safety;
- decreasing workplace efficiency;
- causing a lack of necessary staffing;
- jeopardizing security or health;
- infringing on the rights of other team members;
- costing the employer more than a minimal amount; or
- requiring other team members to do more than their share of potentially hazardous or burdensome work.
This is a highly fact-specific inquiry. If the employer is able to establish that the requested accommodations impose an undue hardship, the employer may exclude the employee from the workplace under a leave of absence or terminate employment. However, employers should use extreme caution in making a termination decision, and should consult with their counsel before relying on an undue hardship determination.
Example #2: Employee Refuses Regular Weekly Testing and Wearing a Face Mask
As an alternative to getting the COVID-19 vaccine, an employer may require an employee to undergo regular weekly testing and wear a mask. If an employee objects on religious grounds, the employer’s obligation to engage in the interactive process is once again triggered. Certain accommodations, such allowing the employee to telework, or providing an unpaid leave of absence may be a practical short-term solution for certain employers. However, providing such accommodations might not be practical at all for smaller employers, resulting in undue hardship. For example, an employer likely would not be required to provide an indefinite leave of absence as a reasonable accommodation.
In certain health care industries where either a vaccine, or masking/testing is required, an employer may not be left with any options.
Employers Must Not Retaliate Against Employees For Engaging in Protected Activity
California employers must not retaliate against employees for (1) requesting a reasonable accommodation due to a sincerely held religious belief or practice; or (2) contesting that employer-mandated vaccination policies discriminate on the basis of a religious belief or practice. Retaliation can take the form of termination, demotion, suspension, poor evaluation, or any other action that denies any employment benefit to the employee.
Duggan McHugh Law Corporation is available to help employers implement mandatory COVID-19 vaccination policies and navigate an employee’s request for a religious accommodation.