Employee Vaccine Exemptions

Short Answer:  A belief must be “religious in nature” in order to warrant first amendment protections. For example, beliefs about safety or efficacy are not considered “religious in nature” and are not protected. However, the biggest hurdle in securing a religious accommodation pursuant to Title VII is not whether the belief is correct, but whether it is sincerely held.

Long Answer:  The employee must demonstrate that he or she follows some comprehensive belief system that answers the greater questions of life and death, and that his or her beliefs about vaccination are derived from and dependent on this belief system. The employee must demonstrate that if his or her beliefs are not “traditionally religious,” that they occupy the space in the employee’s life similar to those who are traditionally religious. This typically involves a lengthy statement whereby the employee explains the full nature of their religious beliefs (what happens after death, what their purpose in life is, etc.), and how his or her faith plays out in the employee’s daily life.

Short Answer:  Yes, but in a very limited manner.  When an employer has a genuine uncertainty about the basis for the employee’s accommodation request, it is permitted to make a limited inquiry to determine if the belief or practice is religious and sincerely held and gives rise to the need for accommodation. It is up to the employee to establish the belief at question is “religious in nature” and “sincerely held” to ward off additional inquiry. However, in many cases where the employee has not proven the nature of the religious beliefs or their objections to vaccination, the employer will request additional documentation or deny the request.

Long Answer: When it comes to vaccination, employers often ask for additional information if they have reason to doubt the sincerity of the employee’s belief or when the employee has not met the highest standard under the law. When it comes to vaccination, employers often burden employees with meeting the highest standard under the law and proving their beliefs are “religious in nature” and “sincere” before granting an accommodation. Note that under applicable Title VII and EEOC standards, when an employer has a genuine doubt about the basis for the employee’s accommodation request, it is permitted to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held and gives rise to the need for accommodation. In reality, many employers will outright deny exemptions for not meeting the legal standard rather than making a good-faith inquiry. It’s important to consult with an experienced attorney to ensure your submission meets your employer’s standard and the applicable legal standard.

In fact, the EEOC’s Questions and Answers: Religious Discrimination in the Workplace lists factors that might weaken an employee’s claim that he or she sincerely holds the religious belief at issue as:

1. whether the employee has behaved in a manner markedly inconsistent with the professed belief;

2. whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

3. whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and

4. whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The issue of “sincerely held” is a totality-of-the-circumstances assessment.  Therefore, none of the above-listed factors are dispositive of the issue of sincerity.  For example, although prior inconsistent conduct is relevant, an individual’s beliefs and degree of adherence may evolve.  Thus, a requestor’s newly adopted or inconsistently followed religious practices can qualify as “sincerely held” under Title VII. EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). Furthermore, “an employer [] should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of [the] religion.” Questions and Answers: Religious Discrimination in the Workplace. See also, Commission Guidelines, 29 C.F.R. § 1605.1.

If an employer makes a reasonable request for information regarding the need for accommodation, a requestor should respond.  An employee who refuses to cooperate with an employer’s requests for valid information may deprive the employer of the information necessary to resolve the accommodation request and potentially forfeit the requested accommodation. Both parties must engage in the interactive process.

During the COVID-19 pandemic, some employers overstepped by questioning the sincerity of their employees’ religious beliefs and practices, a practice that many courts surprisingly condoned. This created new case law that provides employers more leniency in questioning the sincerity of the employee’s beliefs.

In addition, in 2023, in Groff v. DeJoy, the U.S. Supreme Court clarified the meaning of “undue hardship” in the context of accommodating religious beliefs in the workplace. This clarified definition significantly raises the bar for employers to deny a request based on “undue hardship.” The natural consequence of this shift in the legal landscape is that employers will focus more heavily on scrutinizing the sincerity of the employer’s beliefs as a basis for denying the request rather than denying it based on undue hardship. Thus, an employee seeking religious accommodation should plan for this by submitting a robust and comprehensive statement to support the request.

Short Answer:   No, it is unlawful for an employer to make that a requirement for reasonable accommodation.

Long Answer:  Religious beliefs can be unique to an individual; thus, evidence from others is not always necessary. The EEOC recognizes that religious beliefs may be “unique beliefs held by a few or even one individual,” and that employers should ordinarily assume a request is based on a sincerely held religious belief unless they have an objective basis to question it. This does not, however, stop all employers from seeking out this information, even though it is not legally relevant or permissible under the EEOC. During the Covid-19 pandemic, many employers required clergy letters in support of a religious exemption request, and many denied employees for not providing said letter. Even though this kind of information is not lawful for an employer to request, many will still try to request this information in hopes of dissuading employees whose beliefs are personal and sincerely held.

It’s important to note that under the EEOC, an employer may request a letter from a third-party on the second inquiry only, if it has an objective reason for doubting the sincerity of the employee’s held beliefs. However, an employer may not mandate that this letter come from a member of the clergy.

Short Answer:  Maybe.

Long Answer:

Regarding EUA COVID-19 vaccines, workers’ compensation cases are being tested in litigation, with varying results. Workers’ compensation liability will continue to evolve as COVID-19 cases are litigated and as state lawmakers define COVID-19-specific rules in the context of workers’ compensation claims.  Access to workers’ compensation in these cases is typically dictated by state-specific laws and regulations.

Short Answer:  Maybe.

Long Answer:  The [ Vaccine Injury Compensation Program (the “VICP”)](https://www.sirillp.com/what-to-expect-in-the-vaccine-injury-compensation-program/) is a federal program developed in the 1980s to compensate people with specific reactions and injuries caused by certain vaccinations. The VICP compensates for pain and suffering,  past and future lost wages, and medical expenses.  However, not all VICP claims receive compensation.  Currently, COVID-19 vaccines are not compensated through the VICP.

Workers’ compensation benefits typically pay around 2/3 of the employee’s actual lost wages.  A person receiving workers’ compensation cannot “double-dip” and receive full compensation from the VICP.  However, the person can seek the difference between the workers’ compensation benefit and the actual lost wages from the VICP.  If the person incurred costs for treatment of the vaccine injury, the VICP will reimburse the costs. The VICP will only reimburse the portion paid, or due to be paid, by the injured person. The VICP does not reimburse any amount paid by insurance companies or Medicaid.

Regarding emergency use COVID-19 vaccines, the federal Public Readiness and Emergency Preparedness Act (the “PREP Act”) may provide immunity from certain types of liability arising from the administration of vaccines to “covered persons” under the Act. In addition, this immunity may extend to certain private-sector employers as specified under the U.S. Department of Health & Human Services’ advisory guidance.  Consequently, an employer providing a COVID-19 vaccine onsite may be immune from claims of injury or loss arising from the administration of a COVID-19 vaccine, except in instances of “willful misconduct.”

The PREP Act also provides a compensation program, the Countermeasures Injury Compensation Program (the “CICP”), to eligible individuals who suffer serious injury from one of the protected countermeasures, which currently includes emergency use COVID-19 vaccines.

The Americans with Disabilities Act (ADA) is a federal statute that provides significant protection to employees. It requires employers to accommodate employees who meet the legal requirements of this act, assuming that the employer can do so without undue hardship. The ADA’s definition of “disability” is written very broadly, and the purpose and intent of the ADA and the case law involving the ADA do not support that an employer can limit the protection of the ADA to such narrow confines. However, the employer can deny the medical exemption if the language used does not otherwise meet the requirements of the ADA.

RESOURCE: CDC’s Definition of Contraindication or Precaution

In employment, vaccine exemptions are generally regulated by the Americans with Disabilities Act and any similar state or city law. The ADA may not apply to a private religious institution, but there are instances when the institution voluntarily adheres to it. Whether a state or city disability rights law applies depends on how the statute is written and whether it covers the facts and circumstances of any one case.

Most employers are covered by the Americans with Disabilities Act and, therefore, must accept an employee’s valid application for a medical vaccine exemption. However, the employer can deny the request if it doesn’t meet the law’s requirements or if the employer can prove that providing the exemption poses an undue hardship.

Regarding a vaccine exemption, an undue hardship usually means that the employer alleges that permitting an unvaccinated employee in the workplace poses a risk of harm to others. However, the employee will often have arguments to overcome the employer’s position. For example, if the vaccine or vaccines at issue don’t prevent transmission or infection, the employer’s arguments regarding undue hardship aren’t compelling. Siri & Glimstad managing partner Aaron Siri has several Substack articles on this subject. Siri & Glimstad attorneys have been successful in handling cases where employers allege undue hardship.

Medical exemptions are also complicated and nuanced, and a full review of the law for medical vaccine exemptions is beyond the scope of this FAQ. However, the basics of a medical exemption are as follows:

• Medical exemptions are based on a medical condition, impairment, disability, condition, or history of the same. Examples include anaphylactic allergies, diabetes, neurological conditions, depression, arthritis, genetic conditions, previous adverse vaccine reactions, eye conditions, and asthma.

• A healthcare provider writes a medical exemption (but the patient can propose language for the medical professional to use).

• The language in a medical exemption should follow the language used by the U.S. Centers for Disease Control and Prevention (CDC) in its vaccine contraindications and precaution guidance and the language found in the Americans with Disabilities Act. However, strict adherence to the CDC’s contraindications and precautions table isn’t necessarily required as long as the physician is able to explain, based on the current medical guidance and studies, why the vaccine(s) at issue are more of a risk than a benefit to the employee.

• The ADA and the state law equivalent govern medical exemptions. The ADA is a federal statute that applies to private and public institutions (but not necessarily private religious institutions). Some states have broader and more robust protections for disabled workers. It’s important to consult with a licensed attorney familiar with your state’s law.

• The ADA’s definition of “disability” is very broad, so many people are surprised to learn that they  qualify for ADA protection and may be eligible for a medical vaccine exemption.

• Medical exemptions must be very specific and clearly connect the employee’s medical condition with the need to avoid the required vaccine(s). Most physicians aren’t familiar with writing a legally sufficient vaccine exemption, so working with a knowledgeable attorney regarding the required language is helpful.