Dealing With Religious Objections to a COVID-19 Vaccine Requirement

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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.

Can An Employer Ask for Proof of COVID Vaccination?

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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.

Testing Employees for COVID-19: What Employers Can and Cannot Do

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COVID-19 is still among us. Indeed, there are areas of the country where COVID-19 cases are surging.  In those areas especially, employers want to minimize the spread of the virus to other employees and customers or clients. So what tests can an employer require from employees to determine whether they have COVID-19?

For the answer to this question, we look at guidance issued by the U.S. Equal Opportunity Commission (EEOC).  The EEOC issued some technical assistance questions and answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  And what the EEOC wants employers to know is that the EEOC considers testing employee temperatures or testing for COVID-19 to be “medial examinations,” and medical examinations must generally be job-related and consistent with business necessity.  

According the the EEOC, employers may do the following:

  • Employers may measure employees’ body temperature.
  • An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. This is the testing, generally via a swab, to determine if someone has an active case of COVID-19. As discussed below, antibody tests are treated differently.

Employers may not do the following:

  • Employers cannot require antibody testing before allowing employees to re-enter the workplace.  In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. 

It is also important for employers to maintain all information about employee illness and testing as a confidential medical record in compliance with the ADA. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. 

An employer should not reveal the identity of an employee who is sick with COVID-19 to other employees or the general public. (And please–make sure your employees don’t post this kind of information on social media!). However, an employer can disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

Stay safe out there!

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.

©2020 Kathleen J. 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.