Companies like Wal‐Mart, United Air Lines, and Tyson Foods have announced plans to require part or all of their workforce to be vaccinated against COVID-19. Many employee claims for religious exemptions are likely to follow. How are they likely to fare as a legal matter?
In April I wrote:
Title VII, the federal employment discrimination law, forces an employer to accommodate employees’ religious beliefs when it can do so without cost. For that reason, employees with religious objections to vaccination can ask employers to exempt them, and employers must at least consider the request. “Consider,” however, does not mean “accede to”: under a 1977 Supreme Court case called Trans World Airlines v. Hardison, which I’ve written about here, Title VII “does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.” (That’s Justice Alito’s description of the holding.) It amounts to a relatively lenient standard for employers, and given that lack of COVID-19 vaccination increases the risk of contagion of a serious illness, I think most courts most of the time will accept employers’ argument that obligatory waivers would ask them to shoulder more than a de minimis burden.
As usual with legal matters, though, it can get more complicated. Even with a not‐too‐unfavorable ultimate standard, the current state of the law still leaves employers plenty of ways to trip up.
Managers may dismiss some religious objectors without considering accommodation (in effect, without negotiating) because they perceive them as insincere, opportunistic, or patently irrational. Watch out for that. Ohio employer‐side lawyer Jon Hyman notes that the federal Equal Employment Opportunity Commission takes a super‐broad view of which objections are religious:
The EEOC does not limit its definition of a religious belief, practice, or observance to those that are espoused by an actual religion. The EEOC’s definition also includes moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. Moreover, per the EEOC the fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a protected religious belief of the employee.
So even though relatively few organized churches actually take a theological stand against vaccination, and even though a given employee may have paid zero heed in the past to the teachings of religion, employers may be well advised to treat each objector as the implicit founder of his or her own church‐of‐one. (Courts, it should be noted, don’t always defer to EEOC positions.)
Also less than reliable, by and large, is what you might call the “but that’s crazy!” defense. In one celebrated case not involving vaccination, the EEOC went to bat for a coal company employee who feared its biometric check‐in hand scanner would impart to him the Book of Revelation’s “Mark of the Beast.” He proceeded to win a $600,000 award. It’s true there is a certain logic to the idea that the government (including the courts) cannot put itself in the position of evaluating the truth claims of one religion as against the next. But note the remarkable practical result here, which is that even private actors may also be forbidden to take practical sides on the truth claims of religion.
Then there are the logistic trip‐ups. Consider a case I wrote about in 2018 in which an Asheville, N.C. hospital agreed to pay $89,000 to settle EEOC claims that it had failed to accommodate workers’ request to be excused on religious grounds from the seasonal influenza vaccine:
Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson.
That’s not the only case in which the EEOC has extracted settlements from hospitals that were too inflexible in handling flu‐vaccine exemption requests. It’s possible that the commission, the courts, or both may grant employers more leeway on the recognition that COVID-19 is much more dangerous than the flu virus – but then in hospital settings the flu virus itself can be a pretty big deal.
Provided they can get past these pitfalls, employers do have some high cards they are allowed to play in negotiations. In particular, they can offer accommodations other than just coming to work and forgetting about the policy. These might include, Hyman says, “masking while at work, a change in work location or shift to minimize contact with others, remote work, or even an unpaid leave of absence.” That might weed out some of the insincere and opportunistic.
The ideological background of the objections is perhaps not surprising at this point: it is mostly “conservative” groups that are mobilizing to promote litigation based on the more liberal interpretations of employers’ obligations. That’s not a stance friendly toward the values of private ordering, free association, or contract or property rights in the workplace setting. But it is, perhaps, a sign of the times.
