Monadnock Ledger-Transcript – Religious exemption requests related to COVID vaccine pose growing challenge for employers
Prior to the pandemic, almost all of the religious exemption requests clients made to lawyer James Reidy called for an accommodation of the work schedule for religious holidays and practices. Reidy represents employers, and those with immunization warrants are asking him a new question these days: Since an employee only needs to certify that his “sincere” religious beliefs conflict with taking the job. vaccine, how do they test the legitimacy of requests?
The answer is more and more “You don’t do it” because it is almost impossible to do. It also becomes legally complicated with workers across the country suing employers for denying religious and medical exemptions, including more than 260 Mass General Brigham employees. Of the 2,400 requests received by the hospital, 2,000 were for religious reasons, according to the Boston herald.
There is a reason for the uncertainty and confusion, and not just because this is new ground for employers. Religion is broadly defined in law, and the advice provided by federal agencies, lawyers, and even the courts is constantly evolving and at times inconsistent.
“The trend I’ve seen over the past two months is that more and more employers are saying, ‘Look, how do I judge sincerity? Said Reidy, who has seen more than 150 requests come to his desk in Sheehan, Phinney, Bass and Green in Manchester. “If the person fills out the form and puts it in there, ‘It’s my belief,’ and they attest to it? Most employers accept this.
But not at all.
Lawyer Leslie Johnson of the Sandwich Center, who has helped more than 20 employees file religious exemption requests or appeal denials, said she has seen employers subject employees to something more close to an inquisition.
Some employers require letters of proof signed by a religious leader or specific details on when, how and where the employee has demonstrated their beliefs, she said. Her clients have been asked to say if they have refused other vaccines and to reveal if anyone has helped them prepare for their exemption request.
“This information is not required, and I am really surprised and offended by the questions they ask people about their beliefs,” Johnson said. “However, to protect the person’s work, I recommend that they vaguely answer these 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 respond “reasonably” to requests by an employee to be exempt from a company rule or policy when it conflicts with their beliefs, practices or sincere religious observances – provided that the request does not place an undue burden on the employer.
Initially, employers were told they could require employees requesting a religious exemption to provide a letter from a religious leader. Others decided that they should only consider requests related to dominant religions. Some have asked for passages from the Bible and other doctrinal evidence that conflicted with a vaccine. Very quickly, anti-mandate groups began to circulate models with what they considered to be the strongest quotes and religious evidence.
The assessment process became more difficult as mainstream religions endorsed vaccination as a moral duty to protect the community or called it a personal choice.
This included the Church of Christian Science, which advocates healing through prayer and not medicine in most cases, and the Catholic Church, which opposes vaccines created from fetal tissue made from aborted cells. . The United States Bishops’ Conference in January issued guidelines reassuring Catholics that they can in good conscience take a vaccine against COVID-19, saying cells derived from abortions were being used to test the vaccine’s effectiveness , not to create it. And, according to the guide, these fetal cells were “far removed from the initial harm of abortion.”
Several local religious leaders said they had not been approached for religious exemptions for members of their congregations.
“Overall, people are not in favor of vaccine exemptions,” said Reverend Heidi Heath, executive director of the New Hampshire Council of Churches, referring to the many faiths represented on the council. “And we understand just about every level that getting the vaccine 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 has partnered with the local health service to host a vaccination clinic. “We have been sending the message for a long time that it is really important for everyone who can be vaccinated,” said Rabbi Jonathan Spira-Savett. “We have a principle, we are responsible for saving each other’s lives and we are supposed to take care of our own bodies. “
Ajahn Jayanto, co-abbot of Temple Forest Monastery, said the Buddhist faith advises followers on the morality and intent of their choices, but leaves the decisions to individuals, including whether to get vaccinated. The monastery has remained open to 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 Opportunities Commission to update its guidelines for employers at the end of last month. He advised employers to assume that employees were truthful when citing sincere beliefs, unless they had an “objective” basis for doubting. And even then, the commission recommended a limited investigation, warning that a person’s religious position may be based on a non-traditional religion and even be contrary to those held by the leaders of their faith.
Allowing all religions and faiths to qualify in certain respects has created more confusion.
“I saw, ‘I’m an objectivist,’” Reidy said. “And it’s like, what is this?” I had to search. We’ve seen Marconics, which is sort of an ascending type of spiritual healing. We have seen all kinds of things beyond what you will recognize as established religions.
Rather than advising employers how to investigate a religious claim, Reidy advised them not to.
“Supervisors are the eyes, ears and backbone of most organizations, but they can also be an employer’s Achilles heel,” he wrote in his recent article, “10 Things That Keep HR Professionals Awake At Night (COVID-19 Edition). “This is especially true when supervisors, no matter how well meaning they are, pressure employees and asking inappropriate questions about an employee’s exemption request. “
As the federal mandate deadline for federal contractors, healthcare workers, and large corporations approaches, employers are focusing less on analyzing the details of employee beliefs and more on the next step: if there is. an accommodation that would allow an unvaccinated employee to remain at work.
“Even if someone has a sincere religious belief against vaccination, this is not the end of the discussion,” said labor lawyer Jon Meyer of Backus, Meyer and Branch in Manchester, who represents the employees. “This is really the start of the discussion.”
The most common accommodations are the ability to work remotely, to mask and socially distance yourself in the workplace, and to test for infection regularly. If an employee refuses accommodation, the employer can legally fire them. The same is true if an employer concludes that there are no accommodations that would maintain workplace safety for the public or other employees.
“If you have people in the workplace who are having immunosuppression issues, they are entitled to reasonable accommodation,” Meyer said. “Employers may argue that it would be unreasonable and unjustified to allow unvaccinated employees to be near someone who cannot be protected by a vaccine.”
Johnson said some of her clients have been offered what she sees as unreasonable accommodations, such as regular testing even though they work from 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 justified, but at this point it’s not the battle to be fought,” she said. “The battle now is to keep people working. (Employers) should be happy to grant exemptions to their employees in order to maintain their workforce in this type of labor market.