Whether to protect the health and safety of their workplaces, to comply with governmental requirements when applicable, or a combination of the two, many employers have adopted mandatory COVID-19 vaccination policies. Faced with the consequences of refusing to be vaccinated, a number of workers are now filing religious discrimination lawsuits against their employers for failure to accommodate their anti-vaccine religious beliefs. Court decisions from the preliminary stages of these cases provide key lessons on navigating the religious accommodation process, whether in the context of vaccination policies or otherwise.
Under Title VII and many analogous state laws, an employer must provide religious accommodations to an employee with a sincerely held religious belief or practice that conflicts with an employment requirement — unless an accommodation would impose an undue hardship on the employer. (Some states go further and provide exemptions for personal beliefs or personal conscience.) An accommodation is an undue hardship if it would impose more than a de minimis cost or burden on the employer. This is a less rigorous standard than undue hardship under the Americans with Disabilities Act (ADA), which requires showing the accommodation would impose a significant difficulty or expense.
In these early COVID-19 vaccination religious accommodation decisions, employees have sought preliminary injunctions to temporarily stop employers from enforcing mandatory COVID-19 vaccination policies while litigation is pending. Courts so far have been nearly unanimous in denying preliminary injunctions, concluding that the employers will likely prevail on the merits of the cases.
The first key issue is whether the employee can prove religious discrimination, which requires showing that a particular belief or practice is religious. While some courts have found that a particular opposition to the COVID-19 vaccine is religious, others found that a similar opposition is merely personal. Whether opposing the vaccine is part of an employee’s sincerely held religious belief is a highly fact-dependent analysis. In many of the cases, however, this analysis is not necessary because the employers did not challenge the beliefs at issue.
Regardless of whether the employee can prove religious discrimination, the cases largely turn on whether the workers’ requested accommodations would likely impose an undue hardship on employers. So far, courts generally agree that they do.
These proposed accommodations typically include mandatory masking, mandatory testing, and remote work. According to the courts, mandatory masking and testing of unvaccinated employees would require employers to spend funds on monitoring and testing, and would expose other employees and customers to a higher risk of transmission. Remote work, particularly for customer-facing roles, would require employers to alter their operations.
It is important to remember that these cases are in the preliminary stages, and the final decisions in the later stages of litigation may differ. Additionally, most of these early cases involve either airline employees or health care workers, where remote work is likely not an option and where the risk of transmission is particularly high. It is unclear at this early stage whether courts will find the proposed accommodations impose an undue hardship on employers in other industries. Courts could find that masking, testing, and remote work may be implemented in other industries more easily and with less risk of transmission — and therefore impose only a minimal burden or cost to employers in those settings. Nevertheless, these cases provide important reminders of best practices when it comes to navigating religious accommodations, particularly regarding mandatory vaccination policies:
Remember, an employer does not need to provide the employee’s preferred accommodation if there is more than one reasonable accommodation — and need not provide any accommodation at all if doing so would impose more than a minimal cost or burden on the employer.