Story Produced by New Hampshire Bulletin
Prior to the pandemic, nearly all the religious exemption requests clients brought attorney James Reidy sought a work schedule accommodation for religious holidays and practices. Reidy represents employers, and those with vaccine mandates are coming to him with a new question these days: Given that an employee need only attest that their “sincerely held” religious beliefs conflict with taking the vaccine, how do they test the legitimacy of the requests?
The answer is increasingly, “You don’t,” because it’s nearly impossible to do. It’s also becoming legally complicated with workers across the country suing employers over denied religious and medical exemptions, including more than 260 employees of Mass General Brigham. Of the 2,400 requests the hospital received, 2,000 were for religious reasons, according to the Boston Herald.
There’s a reason for the uncertainty and confusion, and not only because this is new ground for employers. Religion is broadly defined in law, and the guidance coming from federal agencies, lawyers, and even the courts is ever-evolving and sometimes inconsistent.
“The trend that I’ve seen in the last couple of months is more and more employers are basically saying, ‘Look, how do I judge sincerity?” said Reidy, who’s seen well over 150 requests come across his desk at Sheehan, Phinney, Bass, and Green in Manchester. “If the person fills out the form and they put it in there, ‘This is my belief,’ and they’re attesting to it? Most employers are accepting that.”
But not all.
Attorney Leslie Johnson of Center Sandwich, who has helped more than 20 employees file a religious exemption request or appeal a denial, said she’s seen employers put employees through something closer to an inquisition.
Some employers are requiring signed letters of proof from a faith leader or specific details of when, how, and where the employee has demonstrated their beliefs, she said. Her clients have been asked to say whether they’ve refused other vaccines and disclose if anyone has helped them prepare their exemption request.
“That (information is) not required, and I’m really surprised and offended about the questions they are asking people about their beliefs,” Johnson said. “However, to protect the person’s job, I recommend they vaguely answer those questions as much as they feel comfortable. We are not going to educate employers all at the same time.”
The Civil Rights Act of 1964 requires employers to “reasonably” accommodate an employee’s requests to be exempted from a company rule or policy when it conflicts with their sincerely held religious beliefs, practices, or observances – provided that the request does not pose an undue burden on the employer.
Initially, employers were advised they could require employees seeking a religious exemption to provide a letter from a faith leader. Others decided they had to consider requests only related to mainstream religions. Some asked for Bible passages and other evidence of doctrine in conflict with a vaccine. Very quickly, anti-mandate groups began circulating templates with what they considered the strongest religious citations and evidence.
The evaluation process became harder as mainstream religions either endorsed vaccination as a moral duty to protect the community or called it a personal choice.
That included the Christian Science Church, which advocates healing through prayer and not medicine in most cases, and the Catholic Church, which opposes vaccines created using fetal tissue grown from aborted cells. The United States Conference of Bishops issued guidance in January reassuring Catholics they could in good conscience take a COVID-19 vaccine, saying abortion-derived cells were used to test the efficacy of the vaccine, not create it. And, the guidance said, those fetal cells were “very remote from the initial evil of the abortion.”
Several local faith leaders said they’ve not been asked for help with religious exemptions from members of their congregations.
“Broadly folks are not in support of vaccine exemptions,” said the Rev. Heidi Heath, executive director of the New Hampshire Council of Churches, referring to the many faiths represented in the council. “And we pretty much across the board understand that getting vaccinated is one of the ways we love and care for our neighbor and protect the most vulnerable among us.”
For similar reasons, Temple Beth Abraham in Nashua partnered with the local health department to host a vaccine clinic. “We’ve been sending out the message for a long time that it is really important for everybody who is eligible to be vaccinated,” said Rabbi Jonathan Spira-Savett. “We have a principle, we’re responsible to save each others lives, and we are supposed to take care of our own bodies.”
Ajahn Jayanto, co-abbot of Temple Forest Monastery, said the Buddhist faith counsels followers on the morals and intention of their choices but leaves decisions up to individuals, including whether to be vaccinated. The monastery remained open for visitors throughout the pandemic, regardless of vaccination status, with safety protocols like masking and social distancing in place.
The lack of clarity led the Equal Employment Opportunity Commission to update its guidance for employers late last month. It advised employers to assume employees were being truthful when they cited sincerely held beliefs unless they had an “objective” basis for doubt. And even then, the commission recommended a limited inquiry, cautioning that a person’s religious position can be based on a non-mainstream religion and even be contrary to those held by the leaders of their faith.
Allowing all religions and faiths to qualify in some ways created more confusion.
“I’ve seen, ‘I am an Objectivist,’” Reidy said. “And it’s like, what the heck is that? I had to look it up. We’ve seen Marconics, which is a sort of ascension type of spiritual healing. We’ve seen all manner of beyond what you would recognize as established religions.”
Rather than advise employers how to investigate a religious claim, Reidy has advised them how not to.
“Supervisors are both the eyes, ears, and backbone of most organizations but they may also be an employer’s Achilles heel,” he wrote in his recent piece, “10 Things That Keep HR Pros Awake at Night (COVID-19 edition).” “That is especially true when supervisors, even if well-intended, press employees and make inappropriate inquiries about an employee’s exemption request.”
As the deadline nears on federal mandates for federal contractors, health care workers, and large companies, employers are focusing less on parsing the details of employees’ beliefs and more on the next step: whether there is an accommodation that would allow an unvaccinated employee to stay on the job.
“Even though somebody has a sincerely held religious belief against being vaccinated, that’s not the end of the discussion,” said employment law attorney Jon Meyer of Backus, Meyer, and Branch in Manchester, who represents employees. “That is really the start of the discussion.”
The most common accommodations are the option to work remotely, mask, and socially distance inside the workplace, and test regularly for infection. If an employee refuses an accommodation, the employer can legally fire them. The same is true if an employer concludes there are no accommodations that would maintain workplace safety for the public or other employees.
“If you have people in the workplace who have immunocompromised issues, they have a right to a reasonable accommodation,” Meyer said. “Employers can argue that it would be unreasonable and undue burden to permit unvaccinated employees in proximity to someone who cannot get protected by a vaccine.”
Johnson said some of her clients have been offered what she considers unreasonable accommodations, such as testing regularly even if they work at home. She also considers masking in the office unacceptable if vaccinated employees are not masked because both can transmit the virus.
“It’s not really warranted, but at this point, that’s not the battle to have,” she said. “The battle now is keeping people employed. (Employers) should be happy to grant exemptions to their employees in order to maintain their workforce in this type of labor market.”
This story republished with permission under NH Bulletin’s Creative Commons licensing.