Before I tell you which COVID-19 religious accommodation form you need to trash right away, don’t forget that today is the big, free live Zoom on the new OSHA vaccine-or-test mandate. Join me and my partners Amy Epstein Gluck, David Renner, Sid Steinberg, Gordon Berger at Noon ET. Register here (https://bit.ly/OSHAETSZoom).
One of the topics we’ll discuss today is requests for vaccine accommodations and the importance of documenting them. Hopefully, by now, you have a policy and some forms. ‘
Just not this form, I hope.
Shout out to EEOC Commissioner Andrea Lucas, who recently warned employers that the White House’s Safer Federal Workforce Task Force “substantially overhauled its recommended ‘template’ for federal agencies to use for religious accommodation requests.”
Commissioner Lucas expressed concern that “some private employers may have looked to the prior version of the Task Force template as a model for their own company’s religious accommodation process. They should not.” (I added the hyperlink to an archived version).
Commissioner Lucas recently told The Federalist that the old form presented a “considerable litigation risk…to employers that used — or continue to use — it.”
The Federalist article notes that “[i]n one change, a question about the use of medicine that may have violated the Americans with Disabilities Act (ADA), was cut.” Another “question that may have infringed on religious protections was also broadened. ‘Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise?” remains, but the new version of the form asks if the vaccine may also ‘conflict with your sincerely held religious beliefs, practices, or observances.'”
The new version also includes inquiries into whether:
- a requester’s religious objection is to the use of all vaccines, COVID-19 vaccines, a specific type of COVID-19 vaccine, or some other subset of vaccines
- the requester has received vaccines as an adult against any other diseases (such as a flu vaccine or a
I like those questions. However, Commissioner Lucas recommends that employers use the EEOC’s pared-down form that I wrote about late last month.
Whatever approach your business takes, be careful about hitting back too hard at whether an employee’s purported religious beliefs are sincerely-held. Generally, that’s not the hill on which you want to plant your flag and defend. Instead, your focus should generally be on the accommodation itself to determine whether the business can do something reasonable — perhaps not indefinite unpaid leave — to assist the employee without creating undue hardship.
Ok, I’m done talking now. See you at Noon ET on Zoom. https://bit.ly/OSHAETSZoom