As most of you know, President Biden recently outlined a multi-prong strategy designed to curb the current wave of the COVID virus. His plan includes the following points relevant to private employers:
• All employers with 100 or more employees must implement vaccine mandates for their workforce or require workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work. OSHA is soon expected to issue an Emergency Temporary Standard (ETS) to implement this requirement and clarify which private employers are affected, i.e., how 100 employees should be counted. More than likely, the 100-employee determination will apply to the employer’s total number of employees rather than the number of employees at each worksite. The ETS should also require employers with 100+ employees to provide paid time off to those employees to get vaccinated or need time off to recover after vaccination.
• Mandatory vaccinations for all healthcare workers in healthcare facilities receiving Medicare or Medicaid reimbursement, including but not limited to hospitals, ambulatory surgical settings, and home health care agencies.
• Employers with vaccine mandates must consider accommodating only those employees with medical or religious exemptions, and employees who do not qualify for a medical or religious exemption may be subject to termination. Similarly, if an employer permits testing in lieu of vaccinations, an employee who refuses to test may also be terminated unless the employee requires an accommodation relating to testing.
To be clear, an employee requesting an exemption from the employer’s vaccination mandate due to a personal preference – rather than a medical or religious reason – is not protected from termination.
Religious exemptions or accommodations will surely increase in light of President Biden’s mandate, and since these requests are much more nuanced than medical exemptions, here is what employers should focus on in assessing these requests.
The threshold inquiry for any request for a religious accommodation is whether the employee has a “sincerely held religious belief, practice, or observance” that prevents the employee from receiving the COVID vaccine. Sincerely held religious beliefs include “moral or ethical beliefs as to what is right and wrong and held with the strength of traditional religious views.”
Equal Employment Opportunity Commission (EEOC) guidance states that employers should accept an employee’s claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption. The EEOC has identified four factors that may create doubt in an employer’s mind as to the sincerity of the employee’s religious belief, which include the following:
- Whether the employee has acted in a way that is inconsistent with the claimed belief;
- Whether the employee is seeking a benefit or an exception that is likely to be sought for non-religious reasons;
- Whether the timing of the request is questionable, e.g., does the request follows closely on the employee’s request for the same benefit for a different reason; and
- Whether the employer has other (secular) reasons to believe the employee is seeking the exemption.
Employers with an objective basis to question the employee’s stated religious belief should request additional information from the employee before deciding whether to grant the requested accommodation.
Even if the employer finds there is a valid religious reason behind the employee’s requested exemption, EEOC guidance (and other applicable precedent) further provides that an employer need not provide an accommodation if doing so would cause “undue hardship” to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, an employer may be able to show that accommodations (such as regular testing, creating a separate area in which the employee can work, purchasing of personal protective equipment, etc.) are too costly or burdensome or that an unvaccinated employee can compromise the safety of its workforce and patrons. The law does not require that an employee’s religious beliefs be prioritized over workplace safety.
In all accommodation cases, the employer must engage in an interactive dialogue with the employee requesting relief and evaluate each situation on a case-by-case basis. Employers are encouraged to seek legal counsel before denying a request for accommodation and also consider implementing, reviewing or updating any policies and procedures for handling requests for both religious and medical accommodations.
If you have any questions about the implementation of vaccine mandates or other employment-related issues, please feel free to Ellen using the following contact information.
Ellen M. Leibovitch
Board Certified Labor & Employment Lawyer
ASSOULINE & BERLOWE, P.A.
2101 N.W. Corporate Blvd., Suite 410
Boca Raton, Florida 33431