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EEOC letter explains why employers may be required to exempt healthcare workers from mandatory vaccines as a religious accommodation

An employer may run afoul of Title VII of the Civil Rights Act of 1964 if it requires that all health care workers receive a mandatory influenza vaccine regardless of their religious beliefs, according to an EEOC informal discussion letter. The employer instead may be required to provide a reasonable accommodation, unless it would pose an undue hardship. The EEOC letter also serves as a primer on religious accommodations in the workplace.

In a letter dated March 5, 2012, EEOC Legal Counsel Peggy Mastroianni responded to an inquiry as to the application of Title VII to health care workers’ requests for exemption from employer-mandated vaccinations, and related issues. The EEOC attorney first referred to a technical assistance document, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009), which states that “once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).” Facts relevant to undue hardship would include, among other things, “the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation,” according Matroianni.

What religious beliefs may be entitled to accommodation? Mastroianni observed that the EEOC and courts have concluded that “Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” A belief or practice can be “religious” for Title VII purposes even when the employee is affiliated with a religious group that does not espouse or recognize the employee’s belief or practice, or if few, or no, other individuals adhere to it.

Title VII’s protections also extend to individuals who are discriminated against or need accommodation because they profess no religious beliefs. Mostroianni said that religious beliefs include theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally prefer to find that particular beliefs are religious, beliefs are not protected just because they are strongly held. “Religion typically concerns ‘ultimate ideas’ about ‘life, purpose, and death,’” she explained. In contrast, social, political, or economic philosophies, as well as mere personal preferences, are not considered “religious” beliefs that are protected by Title VII.

Accordingly, whether a practice is “religious” depends on the employee’s motivation. The same practice, Mastroianni pointed out, might be engaged in by one person for religious reasons, and another person solely for secular reasons, such as dietary restriction or tattoos. Thus, absent undue hardship, religious accommodation could be required for an applicant or employee with a sincerely held religious belief against vaccination who seeks exemption from the requirement as an accommodation. Notwithstanding, Mastrioanni found it “unlikely that ‘religious’ beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Determining the sincerity of a religious belief. Mastroianni referred to the EEOC Compliance Manual to explain what steps employers may take to scrutinize whether an accommodation request is based on a sincerely held religious belief, and how an employee or applicant can support the sincerity of the asserted belief (Section 12, Religious Discrimination, pp 12-14, 48-51):

  • Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.
  • When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.
  • An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.
  • It also is important to remember that even if an employer concludes that an individual’s professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

Employer defense. The EEOC Compliance Manual, Mastroianni noted, also addresses circumstances under which an employer may assert a defense that it was not required to provide an accommodation because the employee’s asserted religious belief was not sincerely held (Section 12, pp 13-14). Factors that alone or in combination might undermine an employee’s assertion that he sincerely holds a particular religious belief at issue include:

  • whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • 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
  • whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

None of these factors, though, is dispositive, according to Section 12. For example, while prior inconsistent conduct is relevant to the question of sincerity, an individual’s belief, or degree of adherence, can change over time. Thus, an employee’s newly adopted or inconsistently observed religious practice may nonetheless be sincerely held. Employers also should not assume that an employee is insincere merely because some the practices asserted by the employee deviate from the commonly followed tenets of his or her religion.

Alternative infection control practices. Where an employer grants a religious accommodation excusing a healthcare worker from a mandatory vaccination, it may impose additional infection control practices on the worker as a result, such as wearing a mask, provided it does so for legitimate, nondiscriminatory and nonretaliatory reasons, according to Mastroianni. The question of whether the employer’s motivation for imposing additional infection control measures is discriminatory or retaliatory turns on the facts of each case, she said.

The EEOC attorney also noted that the Centers for Disease Control (CDC) provides specific information about healthcare workers and vaccination, and the government’s recommendations for particular types of workplaces and other public settings that are modified depending upon the assessment of the public risk at a given time. The U.S. Department of Health and Human Services has also been actively considering the issue of vaccination for healthcare workers, and what measures to recommend for implementation in hospitals and other settings, Mastroianni advised. More government information and advice for employers is continuously updated based upon risk assessment and posted at www.pandemicflu.gov.