Employee Exemptions

Short Answer:  It is unlawful for an employer to question the accuracy of a sincerely held religious belief.  Hence, most any belief is valid under Title VII.  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:  Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.” Seeger, 380 U.S. at 185.  However, the Court stated in Seeger and has continued to reiterate that no court should inquire into the validity or plausibility of the beliefs; instead, the task of a court is “to decide whether the beliefs professed are sincerely held and whether they are, in [the believer’s] own scheme of things, religious.” Id. at 185.  The religious belief need not be “correct” or even “plausible.” It is unlawful for the employer to questions the correctness of a sincerely held religious belief.  Furthermore, Title VII protects a sincerely held religious belief even if the employee’s spiritual advisor (such as a pastor) or the affiliated religious sect (such as Protestant) disagrees with it.  Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887 (1990); U.S. E.E.O.C. v. Consol Energy, Inc., 860 F.3d 131 (2017).

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.

Long Answer:  Typically, an employer has no reason to question whether the practice at issue is religious or sincerely held.  However, 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.

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.

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:  A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with the religious belief but that does not cause undue hardship for the employer.

Long Answer: Title VII (42 U.S.C. § 2000e-2(a)(1)) requires employers to adhere to certain employment standards and makes it unlawful for an employer to discharge an individual based upon that person’s religious beliefs or practices. Once an employer is on notice that a religious accommodation is needed, Title VII requires that the employer “make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” 42 U.S.C. § 2000e(j). Title VII requires only reasonable accommodation, not “satisfaction of an employee’s every desire.” Rodriguez v. City of Chicago, 156 F.3d 771, 776 (7th Cir. 1998).

The accommodation requirement is “plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.” Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 136 (3d Cir. 1986). A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with the religious belief. An employer violates the “reasonable accommodation” duty where an employee can prove (1) a bona fide religious belief that conflicts with an employment requirement, (2) notice to the employer of this belief, and (3) discipline for failure to comply with the conflicting employment requirement. EEOC v. Firestone Fibers, 515 F.3d 307, 312 (2008).

However, an employer may have an “undue hardship” defense for failing to provide accommodation. This defense requires a showing that accommodation in a particular case poses a substantial increase to cost to an employer. Groff v. DeJoy, 143 S. Ct. 2279, 2295 (2023).

Finally, an employer violates an employee’s religious rights if it provides more favorable accommodation to other employees for non-religious purposes. For example, in the case of Memorial Hospital, the lawsuit alleged it treated the employee’s request for religious accommodation to wear a mask rather than receive a flu vaccine differently than the same request made by employees for medical, rather than religious, reasons. EEOC v. Memorial Healthcare, No. 2:18-cv-10523 (E.D. Mich. Feb. 13, 2018). Therefore, if an employer can provide medical accommodation to a mandatory vaccination without undue hardship, it can likely make similar accommodations for religious exemptions.

Short Answer:   No.

Long Answer:  Religious beliefs can be unique to an individual; thus, evidence from others is not always necessary. However, letters of support from a spiritual advisor may help bolster the “sincerely held” element, expedite the requested accommodation, and eliminate the employer’s justification in conducting an inquiry. Furthermore, courts have ruled against employees who refused to cooperate with an employer’s requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. Macon v. J.C. Penney Co., 17 F. Supp. 3d 695 (N.D. Ohio 2014).

Short Answer:  Maybe.

Long Answer: Regarding EUA COVID-19 vaccines, workers’ compensation cases have not been tested in courts. Workers’ compensation liability will evolve as COVID-19 cases are litigated and as state lawmakers define COVID-19-specific rules in the context of workers’ compensation claims.

Short Answer:  Maybe.

Long Answer:  The Vaccine Injury Compensation Program (the “VICP”) 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, only about 33% of 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 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 regarding whether certain vaccines prevent infection or transmission of their targeted pathogen.

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 health provider-diagnosed 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.
• 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).
• The ADA’s definition of “disability” is very broad, so many people are surprised to learn that they likely qualify for ADA protection and may be eligible for a medical vaccine exemption.
• Medical exemptions must be very specific and clearly connect the student’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.