Dealing With Religious Objections to a COVID-19 Vaccine Requirement

Photo by Soubhagya Maharana on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

In our discussions of rules mandating COVID-19 vaccines, we’ve mentioned the two possible exemptions to a vaccine requirement: disability and religion. Let’s break down the religious exemption.

Under Title VII of the 1964 Civil Rights Act, a covered employer is required to “reasonably accommodate” an employee’s sincerely held religious beliefs or practices, unless such an accommodation would create an “undue hardship” for its business.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. As an example: if an employee has always taken a flu shot, but then claims that they have a religious objection to a COVID-19 vaccine, that is objective evidence that the religious objection to the COVID-19 vaccine is not sincere.

If an employee makes an objection to the vaccine based upon a religion that you have never heard of, it is important not to dismiss the employee or his/her stated religion out of hand or make any negative comments about them. In other words–don’t buy yourself a claim of religious discrimination or harassment. On the other hand, don’t be afraid to do some research into any unknown religion.

If an employer determines that a religious objection to the COVID-19 vaccine is sincere, then the employer must determine whether it can reasonably accommodate the unvaccinated employee. Under Title VII, an employer should thoroughly consider all possible reasonable accommodations for religious accommodation for Covid-19 vaccination requirements, including telework and reassignment. Other employee accommodations include: wearing a face mask; working a modified shift; and being periodically tested for Covid-19.

As with reasonable accommodation requests made pursuant to the ADA, requests for religious accommodations must be analyzed on a case by case basis. Document the request as well as the process of reaching a decision on the requested accommodation.

However, an employer can lawfully reject a requested accommodation if it would cause an undue hardship, which is “more than a trivial cost to its operations.” Applying this standard to COVID-19 vaccination requirements, employers have argued that allowing COVID-19 to spread among employees and the public would be an undue hardship, and therefore, there is no reasonable alternative to vaccination of all employees in jobs where they have contact with other employees or the public, and the spread of COVID-19 cannot be otherwise mitigated.

Pro Tip: employers need to develop a process and designate responsible personnel to handle employee requests for religious exemptions from vaccine requirements.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Protected Concerted Activity in the Era of COVID-19: What Employers Need to Know

Photo by Anna Shvets on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

The National Labor Relations Board (NLRB) is one of the federal agencies that many employers do not have on their radar. The NLRB is most closely associated with union organizing efforts and collective bargaining agreements between unions and companies. In 2020, only 10.8 percent of wage and salary workers in the US were members of unions (according to the Bureau of Labor Statistics), so the vast majority of companies may think that the NLRB will not bother with them. And they would be wrong.

The National Labor Relations Act (NLRA), signed into law by President Franklin Roosevelt on July 5, 1935, is the federal statute administered and enforced by the NLRB. Most employees in the private sector are covered by the NLRA. The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. It’s the “other protected concerted activity” that even non-union employers need to be aware of.

Basically, the NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, they can file a complaint with the NLRB. The NLRB has the power to investigate and take action to make an aggrieved employee whole for any losses due to the employer’s violation of the NLRA (think lost wages and benefits for a terminated employee).

The type of conduct that falls under the definition of “protected concerted activity” is very broad. To be protected conduct, employee conduct must be both “concerted” and for “mutual aid and protection.” But individual conduct or speech can be considered “concerted;” it is well-established that concerted activity includes statements by a lone employee addressing coworkers that seek to initiate, induce, or prepare for group action or, or statements directed to management communicating a truly group complaint.

Bottom line: if employees are talking about anything related to work, it’s probably protected by the NLRA. For example, any workplace rule that prohibits employees from discussing their rates of pay with one another violates the NLRA.

A practical example of what constitutes “protected concerted activity” in the era of COVID-19 was recently addressed by the NLRB in an Advice Memorandum. An employee of a company that sells replacement windows posted a message about COVID-19 precautions on a group work chat maintained by the employer on a third-party messaging application and accessed from personal equipment: “[i]n the last three weeks, our case count has spiked in parallel timing with the last Phase of reopening.” This started a discussion among other employees offering their opinions about the effectiveness of COVID precautions.

The employee was removed from the group chat, then reinstated to the chat with the admonition that he not post anything about COVID-19. The employee eventually refused to report to work on the ground that “the imminent threat to safety caused by the recent spike in area COVID-19 cases, the Employer’s inaction in mitigating the threat, and the inability to discuss these dangers with coworkers prohibited him from performing his job in good faith.” On these facts, the NLRB concluded that the Employer had violated the NLRA by removing the employee from the group chat, making statements that restrained the employee from communicating about his work-related concerns, and constructively discharging the employee. Going forward, the NLRB will issue a complaint against the Employer, and a hearing will be conducted to determine whether the employee is entitled to reinstatement to his job and backpay.

The Takeaway: Many employees have very strong opinions about all things COVID, and they are eager to share them with others. Employers may wish to limit such discussions so that they do not interfere with work. However, when those discussions touch on workplace issues, such as workplace mitigation procedures, workplace vaccination policies, or workplace safety, employers need to tread very lightly or risk an NLRB complaint (or even worse, an OSHA citation for retaliating against an employee who complains about workplace safety issues).

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

How To Handle The Employee Who Refuses To Get Vaccinated for COVID-19

Photo by Gustavo Fring on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Biden administration announced that the Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. The regulation will be issued by OSHA, most likely in the form of an Emergency Temporary Standard (ETS). When enforcing the ETS, OSHA could fine noncomplying businesses up to $14,000 per violation. We anticipate that OSHA will issue the ETS in the next few weeks. We also anticipate that there will be challenges made to the ETS and the authority of the federal government to mandate vaccines.

This is in addition to the expansion of the emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

The bottom line is that over 80 million private sector workers are expected to be covered by a COVID-19 vaccine mandate. And some of those workers are going to refuse to get vaccinated, mandate or not. How does an employer deal with the employee who refuses to be vaccinated?

First, find out if the employee has a legitimate reason to refuse to be vaccinated. Legitimate reasons are generally limited to medical (supported by documentation) or a sincerely held religious belief. “I don’t believe in vaccines” is not enough to qualify as a sincerely held religious belief.

Second, if there is no legitimate reason for the employee to refuse a vaccine, the employer should clearly communicate the consequences of not becoming fully vaccinated by a specific date. Can that consequence be termination? Absolutely. Can you require the employee to pay for weekly COVID testing? Possibly. Or require unvaccinated employees to pay a surcharge on their health insurance? Yes–at least one major employer is already doing it.

As with any workplace rule, an employer needs to be consistent in its enforcement of the vaccine mandate or risk claims of discrimination.

What complicates the situation is the current labor shortage in a number of industries. Many businesses cannot afford to terminate all vaccine refusers because they already do not have enough workers. But will there be enough COVID-19 testing facilities to meet the needs of employers who need to test unvaccinated employees weekly? That remains to be seen.

This is a very fluid situation, and I will continue to provide updates.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Ask for Proof of COVID Vaccination?

Photo by Thirdman on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the CDC issued new guidance regarding persons who have been fully vaccinated aganst COVID-19. Now, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. [People are considered to be fully vaccinated approximately two weeks after receiving the second of a 2 shot series (Pfizer or Moderna), or two weeks after receiving the one J&J shot.]

There are some places where even fully vaccinated should continue to wear masks, such as healthcare settings, public transportation, transportation hubs, homeless shelters, prisons, and jails.

For non-healthcare settings, employers can allow their fully vaccinated employees to stop wearing masks and socially distancing from one another. But how does an employer know which employees have been fully vaccinated, and which have not? Just ask.

The U.S. Equal Employment Opportunity Commision (EEOC) has issued its own guidance regarding employer inquiries about employee vaccination status. In fact, the EEOC states that it is not only lawful for an employer to ask an employee about his/her vaccination status, but the employer can also require proof of vaccination:

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? 

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

And what about the employee who refuses to disclose his/her vaccination status on the grounds that “HIPAA protects this information?” Unless your business is the employee’s health care provider, this is not a valid excuse. Many people misunderstand the scope of HIPAA and believe it has a greater reach than it really does. HIPAA only applies to what are called ” covered entities.” Essentially, those are health care providers (doctors, hospitals, and pharmacies, for instance), health insurers, and health care clearinghouses (which process medical data). It also covers their “business associates,” or contractors who have to handle medical records in some way to do work for those covered entities.  It does not apply to the average person or to a business outside health care. 

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.