Vaccines and Religious Accommodations: How Far Can an Employer Go to Explore “Sincerity”
October 26, 2021
By: Frank Harty
On October 18, Washington State University fired head football coach Nick Rolovich and four assistant coaches for refusing to comply with a state COVID-19 vaccination mandate. An attorney representing Coach Rolovich promised a wrongful discharge suit because Rolovich, a devout Catholic, was denied a religious accommodation. This drama played out in the headlines mirrors conflicts occurring daily in the American workplace.
Vaccine mandates are being rolled out by private employers, states, and federal agencies in an emotionally charged environment. Americans have diminished trust in public and private institutions, the media, and each other. This appears to be fueling conflict between vaccine mandates and religious freedoms. An unprecedented number of employees are requesting religious exemption from COVID-19 vaccine mandates imposed by private and public workplaces. Employers are asking how far they can scrutinize and challenge the sincerity of the alleged religious belief when an employee requests a religious accommodation. Employers should be careful to eliminate emotions and stick to legal fundamentals when addressing religious exemption requests from employer-imposed vaccine mandates.
The Legal Conflict
Mandatory vaccinations have been generally approved and imposed in this nation for over 100 years. In 1905, the United State Supreme Court’s landmark Jacobson v. Massachusetts decision upheld the constitutionality of a state mandated small pox vaccination; in fact, by the time the decision was issued, most states had already mandated the smallpox vaccination. Vaccination mandates in America have typically been imposed by state and local governments, and in the public schools. Compulsory school vaccination in Iowa dates back to 1889. With the exception of certain health care workplaces, vaccination has not been mandated by employers or through the workplace. The COVID-19 pandemic changed that scenario. Many large employers mandated COVID-19 vaccination as soon as the vaccine become available. Several states have mandated vaccines. In September 2021, President Biden issued an Executive Order instructing the federal government to adopt a comprehensive plan to use the workplace to increase vaccination rates across the nation.
On the other hand, religious-based exemptions from vaccination requirements have likewise been recognized for decades. The right to request a religious exemption from vaccination has been embodied and codified both in federal law by Title VII of the Civil Rights Act of 1964 and in the Iowa Civil Rights Act, Iowa Code § 216.6. The First Amendment, federal law and Iowa law prohibit religious discrimination. The courts hold that religious discrimination prohibitions protect workers from discrimination on the basis of religion and that employers must offer reasonable accommodations for workers who have sincerely held religious beliefs unless doing so poses an undue hardship. See 42 U.S.C. 2000(j).
Religious discrimination claims are somewhat rare when compared to other types of workplace discrimination claims. They typically involve religious objections to work on a specific day of the week or workplace dress codes. What constitutes “religion” or a “religious belief” is not usually at issue in such cases because in most instances, the religious nature of the claim is fairly obvious. The regulations implementing Title VII state that “in most cases, whether or not a practice or belief is a religious belief is not at issue.” See 29 C.F.R. § 1605.1.
American courts have broadly defined religion to include ethical veganism, Buddhism, Taoism and secular humanism. See Torcaso v. Watkins, 367 U.S. 488 (1961). An employer does not have to accommodate a person whose beliefs or practices are non-religious in nature such as someone who is opposed to vaccination on political or personal freedom grounds. The preliminary question of whether the individual is being discriminated against “because of” religion always has to be answered.
As is common in the social media era, numerous commentators weigh in on the debate even though they have no training or expertise. One national media source recently championed the practice by an Arkansas healthcare employer that adopted a religious exemption “attestation” aimed at employees who objected to coronavirus vaccines because aborted fetal cell lines were used in the development and testing of the vaccines. The attestation that was reproduced in full in the news piece arguably violates the religious freedom rights of the employees required to sign it.
Courts have long held that employers have a right to make some inquiry into the sincerity of an employee’s religious belief. However, courts have been equally careful to admonish employers to refrain from imposing any sort of religious “truth test.” See United States v. Seeger, 380 U.S. 163 (1965); Wisconsin v. Yoder, 406 U.S. 205 (1972).
It is important to distinguish “unlawful” inquiries from “imprudent” inquiries. Some believe it is unlawful for an employer to require employees to sign attestations or provide a letter from a religious official. Such practices are not facially unlawful. See Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066 (N.D. Ind. 2001). They are, however, dangerous.
The Supreme Court has discussed the permissible scope of inquiries into the sincerity of an employee’s religious beliefs. Wisconsin v. Yoder, 406 U.S. 205 (1972). The courts caution that employers should be careful not to subject the employee to a “truth test.” Redmond v. GAF Corporation, 574 F. 2d 897 (& Cir. 1978).
Some guidelines can be gleaned from the religious discrimination caselaw.
- Avoid arguing the tenets of a particular faith with an adherent.
- Do not assume that a position taken by one member of a faith community dictates the position of other adherents. Catholics, for instance, are allowed to take diametrically opposed positions on mandatory vaccines – all consistent with the Catholic faith.
- Requiring an employee to “swear” that they observe all of the tenets of a particular religion is a bad idea. Even “cafeteria” adherents are protected by Title VII and Iowa law.
- It is far safer to accept an accommodation request as sincere and rely upon the “de minimus” hardship standard to justify the denial of a request.
- Using a “blind” analysis might eliminate charges of denial based upon animosity.
As federal mandates are implemented, employers will have to be prepared to fairly and logically deal with exemption requests. Advance preparation is wise.