Here is an overview of labor law on religious accommodation from a legal expert.
With the increase of the highly contagious variant of COVID-19 Delta, mandatory vaccination requirements are becoming more common in the workplace. Unless prohibited by law or a collective agreement, employers are free to determine working conditions, including that COVID vaccination is an essential safety rule and qualification for the job. In addition, OSHA requires almost all employers to provide workers with a workplace free from known hazards that can cause death or serious physical harm. Nothing in modern times falls more directly into the recognized danger category than COVID.
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Those who oppose getting the vaccine are reacting more and more by asking for an exemption based on their religious beliefs. Federal civil rights laws, such as Title VII of the Civil Rights Act 1964, and similar state and local anti-discrimination laws, prohibit an employer from discriminating against an employee or potential employee on the basis of their religion. . Employers must take into account the religious beliefs of employees which are “sincere”. A religious accommodation is an adjustment of the work environment in order to allow the employee to conform to his religious beliefs.
Even though almost all organized religions support vaccination, the EEOC definition of “religion” is so broad that it encompasses an endless universe of religious beliefs and practices. A belief is religious, as opposed to a “social, political, or economic philosophy”, for the purposes of Title VII, according to the EEOC’s Compliance Manual on Religious Accommodation, if it is “religious” in the “peoples own scheme”. things â, that is to say, it is aâ sincere and significant âbelief whichâ occupies a place in the life of its possessor parallel to that fulfilled byâ¦ God â. The sincerity of the individual employee in espousing a religious observance or practice is “in large part a matter of individual credibility.”
Unfortunately, neither the EEOC nor the courts have provided employers with a viable âtestâ to analyze a request for religious accommodation.
Granted, the EEOC did not anticipate COVID, the Delta variant, the need for mandatory vaccinations, that vaccine opponents would co-opt the religious accommodation law for their own purposes, or that a cottage industry made up of websites , YouTube videos and Facebook pages would pop up to help those looking to avoid vaccination do so more effectively.
Related: 6 Experts On What Biden Employer’s Vaccine Mandate Means For HR
Employee safety is “very relevant”
An employer has three answers when it comes to responding to a request for religious accommodation.
- Accept the application.
- Deny the request on the grounds that the employee’s belief is “insincere”.
- Or decide that meeting the demand would cause it “undue hardship” by forcing the employer to incur more than one “de minimis Cost.”
Almost 50 years ago, the Supreme Court of the United States, in deciding Trans World Airlines v. Hardison decided that TWA did not need to upset the seniority system set out in their union contract to accommodate an employee’s religious belief that prevented them from working on Saturdays. The court rejected proposals that the plaintiff’s Saturday shift would be occupied by co-workers at premium rates or by a supervisor from another department. Both alternatives would imply costs to TWA in the form of “lost efficiency or higher wages” as they would require TWA to incur more than one de minimis Cost.
Although some judges have recently expressed their dissatisfaction with the de minimis standard, it remains the law. In April alone, the court reaffirmed the de minimis norm by refusing to hear two cases of the 11e Circuit court of appeal in which the employer refused to grant religious accommodations due to undue hardship.
See also: Learn more about vaccines and labor law
In general, employers have not found it difficult to support a defense of undue hardship when a religious belief would compromise workplace safety. For example, in a case involving the New York Transit Authority, an employee requested an accommodation exempting him from employer’s policy requiring auto inspectors to wear protective helmets for their personal safety and in accordance with US regulations. OSHA. The court concluded that the potential risk of injury to the plaintiff, as well as to his colleagues who might be called upon to rescue him if he became incapacitated, required the employer to assume risks that would result in undue hardship.
“Safety considerations are very relevant in determining whether a proposed accommodation would result in undue hardship on the employer’s business,” reads the conclusion of Kalsi v. New York City Transit Auth. Likewise, the NYPD established undue hardship when it denied an Orthodox Jewish officer’s request to forgo shaving because he would not be able to effectively wear a respirator requiring a tight face seal, preventing it. thus to respond to certain emergencies with his fellow officers.
It is important to note that the de minimis The standard is federal, and state and local anti-discrimination laws may have their own standards for what constitutes undue hardship. For example, the âundue hardshipâ standard for religious accommodation in the New York State Human Rights Act is harder than Title VII because it is “a development requiring significant expense or difficulty (including significant interference with the safe or efficient functioning of the workplace or a violation of a bona fide seniority system). (emphasis added)
New York City, which has its own human rights law, was concerned that the federal government de minimis was too weak, amended its law in 2011 to add a definition of undue hardship that reflects state law. There is, however, little case law in New York on where, in the context of religious accommodation, âde minimis cost stops, âand where theâ significant expense âbegins. , it is likely that employers will be able to successfully argue that employee vaccination is essential if employers are to safely or efficiently operate their workplace.
The result is that employees may find that their religious beliefs will not protect them from their employer’s mandatory vaccination rule; many will have no legal recourse and may have to choose between employment and vaccination.
The need to maintain a safe work environment and the fact that the government is considering vaccination mandates to increase vaccination rates will put considerable pressure on employers to implement mandatory vaccination programs and, in order to maintain integrity of these programs, reject most requests for religious accommodation.
Richard Reice is a partner in the Labor and Employment division of Kauff McGuire & Margolis LLP. He mainly represents an executive clientele covering the finance, communications, personnel and healthcare sectors. He can be contacted at [email protected]