Arne Müseler / www.arne-mueseler.com, CC BY-SA 3.0 DE, via Wikimedia Commons
I know this should be a “Monday” post, but, oh, what the heck.
Over the past several days, I’ve read several articles about providing religious exemptions for the COVID-19 vaccine. The Dean of the UC-Berkely School of Law says no. The New York archdiocese agrees. And this CNN article predicts a rise in legal challenges.
This post isn’t going to get into the constitutional implications of mandating vaccines. Instead, I’m going to focus on Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on religion, such as refusing to accommodate an employee’s sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship.
Now, I’m going to assume that employees who object to getting a COVID-19 vaccination generally have sincerely held beliefs to back that up. So, an employer should focus on whether an accommodation would impose an undue hardship.
Under Title VII, an undue hardship is anything that creates more than a minimal burden on the operation of the business. The EEOC notes that burdens on businesses that are more than minimal include jeopardizing security or health; or costing the employer more than a minimal amount.
Contrast that with the undue hardship standard under the Americans with Disabilities Act. Under the ADA, undue hardship refers not only to financial difficulty but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.
Translation: it’s much easier to establish undue hardship under Title VII.
So, what might (or might not) be a Title VII undue hardship? Let’s try a few examples:
- Samantha works remotely and does so productively. There is no issue with her work performance, and she has plenty of work to keep her busy. Plus, Teams and Zoom have been sufficient substitutes for in-person meetings. Indeed, Samantha has zero physical contact with co-workers or customers. If Samantha’s company has a mandatory vaccination policy and Samantha has a religious objection, allowing her to work remotely would reasonably accommodate her religious beliefs without creating an undue hardship on the company.
- Jason works in the office. He has expressed a religious objection to the company’s new mandatory vaccination program. However, Jason has agreed to mask, socially distance, and get tested for free at least once a week at a nearby drug store. These prophylactic steps mirror those that the federal government has implemented for its workers. Presumably, therefore, Jason does not jeopardize employee health. Thus, his protocol is a reasonable accommodation.
- Chantel works in the same office as Jason. She also has a religious objection to the vaccine but refuses to wear a facemask. Plus, her job is not conducive to remote work. Accommodating her would create an undue hardship because she poses a health risk to others. (The same would hold if she could not socially distance or get tested regularly).
- Sanjay also works in the office across the street. He, too, has a religious objection to his company’s new mandatory vaccination program and cannot work remotely. Like Jason, he is willing to mask, socially distance, and get tested at least once a week. The difference is that the tests cost money; the company must pay each time it tests Sanjay and everyone else who, like Sanjay, has a religious objection to the vaccine. It is possible under these circumstances that this accommodation may create an undue hardship for the business.
Overall, if masking, social distancing, and frequent testing don’t cost much, you probably have a reasonable accommodation—ditto telework in suitable situations. But, this could change. So stay flexible as we address this Delta variant. There is no one-size-fits-all answer and what may be reasonable today may not be tomorrow.
In other words, it depends.
Which is why I’ll have a job for life 😉