Am I My Brother’s Keeper: Religious Accommodations and Title VII Vaccination Mandates

On September 26, 2021, the NBA rejected Andrew Wiggins’ request for religious accommodation to be exempted from taking the COVID-19 vaccine. After being denied, Wiggins declared his “[b]ack is up against the wall, but I’m just going to keep fighting for what I believe in. . . I will continue to fight for what I believe is right. What is right for one person is not fair for the other and vice versa. When asked what these real beliefs imply, Wiggins replied, “It’s none of your business, that’s what it is. »See the story and some quotes from Wiggins here. Wiggins finally surrendered and I got the vaccine. However, this incident sparked a storm of discussion from lawmakers regarding vaccine requirements. Senator Ted Cruz sent a tweet stating:

NBA vaccination warrants are similar to the vaccination warrants of other employers, but, in response to such warrants, under Title VII of the Civil Rights Act of 1964, as amended (“Title VII” ), employees who have genuinely held beliefs against vaccination may request accommodation. This article explores the interactive process in which an employer and an employee must go to decide whether the employer can or should offer an employee a religious exemption from a vaccination warrant and, if so, what the job looks like. accommodation. Many other documents on this issue refer to it in terms of a “religious exemption”, but this is not correct. The appropriate term is accommodation which may, in some cases, include the employee excused or otherwise exempted from the vaccination mandate, among other accommodation options, such as leave without pay, maintenance of face covering, etc.

Courts limit certain types of surveys that employers can conduct with employees and are generally reluctant to examine an individual’s religious beliefs, not requiring that any belief in question be based on organized or recognized teaching of a particular sect. Although formal religious affiliation was a requirement, organized religions differ. For example, Pope Francis, the head of the Catholic Church, tweeted the following support for COVID-19 vaccinations:

Additionally, leaders of The Church of Jesus Christ of Latter-day Saints (also known as the Mormon Church) urged members to obtain the vaccine. And although practicing Catholics “accepted” the vaccines, about 23% of Catholics did not. Additionally, about 15% of Latter-day Saints identified themselves as hesitant to get vaccinated, with 19% saying they would not get the vaccine. vaccine. With such back and forth between organized religions, it is easier to understand why employers cannot simply determine what the religious doctrine of a particular sect is in deciding whether to grant or deny religious accommodation for them. vaccines.

Although the Supreme Court has analyzed religious exemptions related to military service, the courts have applied the following reasoning to assess religious accommodations for employers:

Men can believe what they cannot prove. They cannot be tested by their religious doctrines or beliefs. Religious experiences as real as life for some may be incomprehensible to others. Local councils and courts in this sense are not free to reject beliefs because they consider them “incomprehensible”. Their task is to decide whether the beliefs professed by a registrant are sincere and whether they are, in their own scheme of things, religious..[1]

Therefore, although Title VII broadly defines religious belief to include “all aspects of religious observance and practice”, an employee’s belief must be (1) religiously motivated and (2) sincere. EEOC declared that if an employee claims their belief is motivated by religion, the first part of the investigation essentially ends and an employer moves on to determine whether the accommodation is based on a “true belief”. For example, if an employee simply requests a religious accommodation because he is afraid of the vaccination and there is no religious motivation behind, a religious accommodation is unnecessary. If the request is motivated by religion, then an employer must take the next step of analysis and determine if it is sincere.

The EEOC has also issued guidelines on how to determine if an employee’s religious belief is genuine. “If, however, an employee requests religious accommodation and an employer has an objective basis for questioning the religious nature or sincerity of a particular belief, observance or practice, the employer would be justified in requesting additional supporting information. The EEOC said that an EEOC investigator can search for the following documentation to determine if a belief is genuine:

  • Oral statements, an affidavit or other documents from the accused party describing their beliefs and practices, including information about when the accused party adopted the belief, observance or practice, as well as when, where and how the accused party adhered to the belief, observance or practice.
  • Oral statements, affidavits or other documents from potential witnesses identified by the accused party or the respondent as knowing whether or not the accused party adheres to the belief, observance or practice in question, other members, family, friends, neighbors, managers or colleagues who may have observed or discussed his past membership or absence.

Therefore, federal courts allow employers to conduct a “limited investigation” into whether an employee’s beliefs are “sincere.”[2]

If an employee does not cooperate with the limited investigation, then an employer is likely able to deny an employee’s request for a religious accommodation: “An employee who does not cooperate with an employer’s reasonable request to verify the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer has improperly refused an accommodation. However, if an employer unreasonably requests excessive corroborating evidence, employers run the risk of being held liable for discrimination or failure to accommodate. Therefore, an employer should only ask what is necessary to determine whether a belief is sincere and not too much survey.

Finally, if an employer determines that an employee has a sincere religious belief, it does not require an employee to be able to skip the vaccination and come to work. An employer has yet to determine whether or not it can provide reasonable accommodations to the employee. Reasonable accommodation does not mean providing the employee with the accommodation they want, as the employer must consider the matter on a case-by-case basis and determine what is reasonable in the circumstances. This case-by-case investigation also takes into account the industry involved, the employer’s business, the employer’s staffing and productivity requirements, the employer’s interface with the audience, among many other factors. For some, reasonable accommodation may include any of the following:

  1. Face cover required
  2. Social distancing
  3. Modified quarters
  4. Periodic tests
  5. Telework
  6. Reassignment

If an employee then declares that the face coverings are contrary to their sincere religious beliefs, a federal court has already ruled that a second religious accommodation was not necessary.[3] In addition, no reasonable accommodation is necessary if it imposes undue hardship. According to the Supreme Court, “an accommodation causes undue hardship whenever this accommodation results in more than one de minimis cost to the employer.[4]For example, the NBA may have felt it was undue hardship to have Wiggins play a physical sport in a closed arena, where players engage in aerobic activity for 48 minutes per game. Therefore, when a religious accommodation is requested, employers can strike a balance and determine what is best for the team based on an individual’s request.

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