The Wild West: Special Considerations for Employers Navigating Employee Medical and Religious Accommodation Requests in the Wake of Covid-19

Just a few months ago, with the announcement of a Delta variant of Covid-19, many employers faced a difficult decision: to mandate vaccination or not. For those employers that have implemented a company-wide vaccination policy, many are now facing a string of accommodation requests for both medical and religious reasons. Employers worry about the legal repercussions of denying exemption requests while also battling a safety issue which could turn into yet another litigation matter. So, what should employers be looking for when considering an employee exemption request? This article provides general information and flags possible areas of concern.

Religious Accommodations

Many individuals who seek accommodation in the workplace call on Title VII of the Civil Rights Act of 1964.¹ Title VII prohibits discrimination based on an individual’s membership in a protected class, which includes race, color, sex, national origin, and religion.² Title VII applies to both private and public sector employers who have more than 15 employees.

The Act creates an affirmative duty on employers to accommodate religion in the workplace and forbids making employment decisions “because of” an employee’s religious beliefs, identity, or observances.³ Under Title VII, “religion” is defined to include “all aspects of religious observance and practice, as well as belief.” That’s very broad language that, practically speaking, extends to all sorts of religious groups and peoples⁴ along with non-religious individuals.⁵

Once an employer is aware of an employee’s need for an exemption, the employer has a duty to accommodate that employee unless doing so would cause “undue hardship.”⁶ According to the Supreme Court, an “undue hardship” is where the accommodation would impose more than a “de minimis” cost on the employer.⁷ This can include economic costs, lost business, or even non-economic costs.⁸ However, determining whether an accommodation would impose an undue burden is a process and many employers would prefer to avoid litigation of the issue.

Medical Accommodations

On the other hand, individuals who seek a medical exemption to a Covid-19 vaccination policy look to a different statute: The Americans with Disabilities Act of 1990.⁹ An individual is considered to have a disability under the Act if they have a physical or mental impairment which “substantially limits one or more major life activities.”¹⁰ Once an employer has been made aware of an employee’s need for an accommodation under the Act, the employer has a duty to fully accommodate the individual unless doing so would impose an “undue hardship.”¹¹ However, this undue burden standard is different from religious accommodation cases. Here, “undue burden” means that providing the accommodation would cause “significant difficulty or expense.”¹² This means that failure to grant a requested medical exemption requires more evidence of hardship on the employer than for a religious exemption. Employers who challenge a requested medical exemption must be prepared to show that there was no way to accommodate the individual without significant expense or difficulty, which is a high burden to meet.

Key Considerations Moving Forward

So, how can employers best navigate employee exemption requests?

1. When an employee first informs you of a needed accommodation, be it medical or religious, ask for additional information regarding the nature of the requested accommodation.
   • If the objection to the employer policy is religious, ask about why the individual objects to the policy—in other words, have the employee explain, in writing, why it would be a violation of his or her religion to comply with your policy.
   • If the objection is medical, request that the employee provide some formal verification of a mental or physical impairment that restricts his or her ability to comply with the policy.
2. Once an employee has provided verification, review the employee’s request.
   • It is generally wiser not to get into theological argument about whether Catholics, for instance, actually do hold that belief. It is the individual’s belief that matters, and the test is whether it is sincerely held, not whether it make sense to you.
   • Be cautious about how much personal medical information you request. For instance, with respect to the H1N1 flu vaccine, the CDC suggested encouraging employees to get it, not requiring them to.¹³ This suggests that it may be more reasonable to treat requests at face value.
3. Once you have received notice, you are obligated to consider the request. Determine whether the employee’s request is something that you, as an employer, can accommodate.
   • This will require determining WHAT accommodation can be made, not simply whether the accommodation requested by the employee can be made. For instance, if an employee requests fully remote work but your organization is not geared toward telework, an alternative accommodation could be suggested, such as social distancing, wearing a mask or periodic Covid-19 testing.
4. If an accommodation can be made without significant difficulty or expense, it should be granted.

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¹ 42 U.S.C. § 2000e et seq

² § 2000e-2

³ Id.

⁴ For instance, an individual who belongs to the Church of Body Modification. See Cloutier v. Costco Wholesale, 390 F.3d 126 (1st Cir. 2004);

⁵ Test for determining what is “religion” within meaning of 42 USCS § 2000e(j) is whether employee’s sincere and meaningful beliefs occupy in employee’s life place parallel to that filled by traditional belief in God. EEOC Dec No. 71–779 (1970) CCH EEOC Dec ¶ 6180; see also Reed v. Great Lakes, 330 F.3d 931, 934 (7th Cir. 2003) (“religious freedom includes the freedom to reject religion--‘religion’ includes antipathy to religion. And so an atheist . . . cannot be fired because his employer dislikes atheists.”)

⁶ § 2000e(j)

⁷ Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

⁸ See EEOC v. Townley Eng’g & Mfg. Co., 859 F2d 610, 615 (9th Cir. 1988) (“Cost cannot always be measured in terms of dollars”).

⁹ 42 U.S.C. § 12101.

¹⁰ Id.

¹¹ § 12112.

¹² § 12111(10)(A).

¹³ https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html

Featured Image by Rebecca Sidebotham.