COVID Vaccination accommodations: What Exactly is a “Sincerely-Held Religious Belief?”
With the crystal-clear clarity that we have come to expect from the EEOC and from the California DFEH, we now know for certain that employers can make COVID vaccinations mandatory…
Except when they can’t.
The EEOC weighed in on this in December, updating their FAQs to essentially imply, rather than to inextricably state that, in most cases, an employer can require that employees get vaccinated. The updated FAQs can be found in Section K here EEOC COVID FAQs Updated December 2020. The California DFEH updated its FAQs on March 4, 2021 providing the “short answer” of “yes” to the question of whether employers can require their employees to be vaccinated. The updated DFEH FAQs can be found here COVID-19 related guidance.
In both cases, the two primary justifications for an employee refusing to be vaccinated are classified under either disabilities or under sincerely-held religious beliefs. Please continue to our blog for a detailed dive into the nuances of what constitutes a “sincerely-held” religious belief.
Tips for Judging Sincerity of Employee’s Religious Beliefs
In many situations, the question of whether an employee’s request for a religious accommodation is tied to sincere religious beliefs isn’t at issue. Instead, you simply need to assess whether you can provide the accommodation without causing an undue hardship. When you do question whether the employee sincerely holds the beliefs—e.g., if she raises a dubious religious objection to getting the COVID-19 vaccine—you should look to the Equal Employment Opportunity Commission’s (EEOC) long-standing guidance on the level of inquiry you can make.
What Are ‘Religious’ Beliefs and Practices?
According to the EEOC, religious practices include the “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.”
The EEOC doesn’t protect beliefs merely because they’re strongly held. Whether a practice is religious depends on the employee’s motivation. Social, political, or economic philosophies, as well as personal preferences, aren’t protected as religious beliefs under Title VII of the Civil Rights Act of 1964.
The EEOC does grant employees the benefit of the doubt. You shouldn’t dismiss the beliefs simply because (1) the employee’s practices deviate from the exact tenets of a religion or (2) few or no people adhere to them.
The definition of “religion” is broad, according to the EEOC, and you aren’t likely to be familiar with every tenet. As a result, you should assume the request for a religious accommodation is based on a sincerely held religious belief.
Does She Appear to Hold the Beliefs ‘Sincerely’?
If you have a bona fide, objective basis to question the employee’s sincerity, you may seek additional information. But first, consider the following factors in deciding whether the religious beliefs are sincerely held, none of which is automatically dispositive of the issue:
- Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
- Whether the requested accommodation is a particularly desirable benefit that’s likely to be sought for secular reasons;
- Whether the timing renders the request suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- Whether you have another reason to believe the accommodation isn’t being sought for religious reasons.
What Kind of Inquiry Can You Make into Employee’s Sincerity?
If you question the beliefs based on the answers to the above questions, EEOC guidance allows you to seek additional information as a part of the interactive process for analyzing religious accommodations. You should engage in the process in a manner free from discrimination, intimidation, retaliation, or overly intrusive inquiries.
The EEOC provides examples of the types of information you should consider:
- The employee’s own statements and firsthand explanations including (1) answers to your follow-up questions about the nature and tenets of the asserted religious beliefs and any associated practices, rituals, clergy, or observances and (2) information about when, where, and how she has adhered to or embraced the belief or practice;
- Written religious materials describing the religious belief or practice;
- Oral statements, affidavits, or other documents from third parties, including (1) religious leaders, if applicable, (2) others whom she identifies as knowledgeable about the religious belief or practices, (3) others who may have observed her past adherence or discussed it with her, or (4) fellow adherents; or
- Oral statements, affidavits, or other documents from managers or coworkers who may have observed her lack of past adherence.
Faced with a dubious religious accommodation request, you may want to talk with your lawyer about formulating the right questions to ask, obtaining statements or affidavits, and assessing whether the employee’s belief is likely to satisfy the sincerity standard.
But How Much Can I Pry?
The EEOC cautions against requesting unnecessary or excessive evidence of the employee’s religious beliefs. Doing so risks the appearance of harassment or intimidation. But employees who fail to cooperate with reasonable requests to verify the sincerity or religious nature of their beliefs risk losing a failure-to-accommodate claim.
The question of whether religious beliefs are sincerely held is relevant only to the validity of a religious accommodation, not to claims of harassment or disparate treatment because of religion. It’s important to begin by presuming a religious belief is sincerely held. Then proceed with caution, requesting verification only when necessary based on bona fide and objective doubts.
After determining the beliefs are sincerely held, next move on to the analysis of whether the accommodation request is reasonable and doesn’t impose an undue hardship.
Article provided by content partner BLR. Author Morgan Geffre is a member of Foulston Siefkin LLP’s Employment & Labor Law Practice Group in the firm’s Wichita office. She assists employers with the review and development of comprehensive employment policies and procedures and proactively researches rapidly evolving issues to help clients stay ahead of developing legal trends.