Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Dear Littler: I work in a health care setting in New Jersey. As flu season is approaching, we emailed all of our patient care employees (nurses, physical therapists, intake staff, etc.) to remind them that an immunization is required by our employer. The deadline is looming, but we have a nurse that is refusing to get the vaccine based on her supposed religious beliefs. We have exempted her for that reason in prior years—but the flu outbreak was so terrible last year, our employer does not want to allow religious exemptions. Do we need to accommodate her?
—Very Vexed in Voorhees
Dear Very Vexed in Voorhees,
As you know, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against applicants or employees on the basis of their religion. As part of that protection, employers are expressly obligated to accommodate religious observances and practices, absent undue hardship. As a result, your employer should consider and process this accommodation request as it would any other such request—even if accommodation ultimately is not warranted. With that basic understanding in mind, we’ll take a closer look at some of the issues lurking in this increasingly common scenario.
Background on Religious Accommodations
Let’s start with a brief refresher on religious accommodations under Title VII.1 An employer’s duty to evaluate an accommodation request generally is triggered when an employee identifies a sincere religious belief that conflicts with a workplace requirement. For example, an employee whose religion prohibits work on a certain day of the week may assert a conflict between his or her religious practices and the employer’s decision to schedule him or her to work on that Sabbath. In most instances, employers will have no reason to doubt the sincerity of an employee’s beliefs.
Importantly, the meaning of “religion” under Title VII is very broad. By definition, “religion” includes “all aspects of religious observance and practice, as well as belief.” Moreover, according to the Equal Employment Opportunity Commission (EEOC), protected religions are not limited to major, well-recognized faiths but also include “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”2 Title VII protects employees who adhere to theistic beliefs “as well as non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”3
Beliefs typically qualify as “religious” if they address “ultimate ideas” about human existence and purpose.4 Nonetheless, there are limits to this expansive interpretation of religion. The EEOC has conceded that “[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII.”5
In short, as long as the employee’s belief qualifies as religious under the EEOC’s broad interpretation, and is sincerely held by him or her, the employer may have a duty of reasonable accommodation. To determine whether this is the case, the employer must evaluate the specific request, consider whether a reasonable accommodation can eliminate the arguable conflict, and discuss options with the employee, including solutions he or she may have offered and alternatives the employer may find preferable. “Employer-employee cooperation and flexibility are key to the search for a reasonable accommodation.”6 The determination of whether an accommodation must be made frequently turns on the nature of the employer’s business and the scope of the religious limitation. As part of this process, the employer will also assess whether a potentially effective accommodation would pose undue hardship such as significant expense or significant burdens on co-workers.
Let’s circle back to our earlier hypothetical, concerning an employee who asserts that he or she cannot work on a Sabbath. This request may be more of a challenge for retail workplaces, for example, depending on operational and staffing needs. But if conversation reveals a solution—let’s say the employee can work Sunday evening shifts, after religious services and activities have concluded, or can use floating holidays or swaps to cover absences—accommodation may be readily accomplished. The reasonable accommodation process involves a case-by-case analysis and leaves a lot of room for creativity and collaboration.
Religious Accommodations for Flu Vaccine
With that background in place, let’s return to your question. Our response must be guided by these same Title VII principles, because they apply equally to religious objections to a flu shot.
Nature of the Conflict
The first consideration is whether the nurse’s opposition is based on a religious and sincerely-held belief. While you don’t seem to seriously question these points in your scenario, some health care employers have concluded otherwise.
Religiosity and Sincerity
Some employers are faced with objections that do not objectively appear religious. In a recent federal appellate case, Fallon v. Mercy Catholic Medical Center, the employer had fired an employee who justified his refusal to be vaccinated with an ethical rationale that the employer did not consider religious. The appeals court agreed and in its opinion highlighted the difference between religious tenets and personal anti-vaccination opinions.7 The Third Circuit reviewed the worker’s complaint describing his beliefs and also an essay he submitted during the proceedings. The employee explained his belief “that one should not harm their [sic] own body” and that “the flu vaccine may do more harm than good.”8 He argued that if he acquiesced to his hospital employer’s policy and received the inoculation, “he would violate his conscience as to what is right and what is wrong.”9 The Third Circuit found that his views were not “religious” within the meaning of Title VII because they: (1) did not address “fundamental and ultimate questions having to do with deep and imponderable matters”; (2) were not, as delineated, part of a comprehensive belief system; and (3) were not “manifested in formal and external signs,” such as services, structure, or other such “manifestations associated with traditional religions.”10 Accordingly, the court affirmed dismissal of the employee’s claim.
The Fallon court acknowledged, however, that anti-vaccination beliefs could be (and sometimes are) protected where associated with religious adherence. A federal court in Ohio in 2012, for example, addressed whether devotion to veganism could be deemed “religious.” The employee in Chenzira v. Cincinnati Children’s Hospital Medical Center was denied accommodation and terminated after refusing the flu vaccine because it would violate her vegan practice of refraining from all animal products and by-products.11 The employer discounted her veganism as a dietary preference or philosophical notion, but the court disagreed. The court pointed out that the plaintiff cited religious passages in her request for accommodation.12 The court held that it was plausible that the employee “could subscribe to veganism with a sincerity equating that of traditional religious views,” particularly since she is not alone in holding to that belief.13
Depending on the circumstances, some employers may have legitimate doubts as to the sincerity of the employee’s beliefs. There may be factors present, “either alone or in combination [that] might undermine an employee’s assertion that he [or she] sincerely holds the religious belief at issue.”14 Factors that may cause an employer to question an employee’s sincerity include whether: (1) “the employee has behaved in a manner markedly inconsistent with the professed belief”; (2) “the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons”; or (3) “the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons).”15
Even where such factors may be present, however, employers should tread lightly. The EEOC suggests that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.”16 Based on your note, your employer does not seem to question the religious nature or sincerity of the nurse’s belief—particularly as it granted her religious accommodations in the past.
Employer Inquiries and Policies
That being said, how does an employer proceed to evaluate the scope or validity of religious accommodation requests?
The process generally starts by asking questions. Information might be needed simply to clarify a request. Consider an employee who refuses a flu shot for “religious reasons” but offers no additional details. An employer might ask for a little more information about the nature of the conflict; perhaps the objection is due to religious opposition to injections or objection to a particular ingredient that could be avoided with an alternate form of the vaccine.
Some employers may consider seeking a basic explanation of the religious objection, as means of verifying the sincerity and motivation of the request. Others maintain a regular policy of requiring some type of confirmation. The EEOC has suggested that, even where employer inquiry is proper, employees should be permitted to substantiate their beliefs in any form.17 Some employers have instructed employees to submit letters from clergy or other third parties, for example, but this practice has fallen under scrutiny.18 Employers remain free to adopt policies requiring some form of verification and may change their policies as desired.19 Nonetheless, employers should understand that not all protected beliefs will involve formal texts or clergy that might explicitly support a legitimate accommodation request.
To clarify its own procedures, your employer is certainly free to update its policy for considering religious accommodation requests, but it should not impose a ban on such arrangements. For example, your organization may require employees to submit some type of verification to explain the overall nature and scope of the opposition to the vaccine. Consistent with EEOC guidance, however, your employer should make clear its commitment that this process will be applied with sensitivity and flexibility.
Assuming that preliminary discussion confirms there is a genuine conflict between the employee’s beliefs and the required vaccination, employers and employees should explore what accommodations might be effective in lieu of a vaccination. Depending on an employee’s duties, an employer might allow an exempted worker to wear a mask to reduce the likelihood of spreading influenza.20 In other instances, reassignment to an available position outside patient care might also constitute a reasonable accommodation.21 Or perhaps a combination of alternatives might suffice.22
Whatever accommodations might be feasible, employers should strive to offer options in a consistent manner. If an employer allows staff to wear masks instead of receiving the vaccine due to medical objections, for example, it should consider granting that same type of accommodation for religious objections. Failure to apply a policy evenhandedly may result in reduced morale, complaints, and/or litigation.23 Your employer should keep these principles in mind as it reviews the nurse’s request.
Finally, based on the nurse’s specific situation, your employer will want to weigh whether a particular accommodation would impose an undue hardship. Undue hardship arises in the context of religious discrimination if the accommodation would require the employer to incur “more than de minimis cost.”24 Factors for measuring an employer’s burden include: (1) the type of workplace; (2) the employee’s job duties; (3) the cost of the accommodation in light of the size and operating costs of the employer; and (4) the number of employees who may need the same type of accommodation. The overall cost to an employer may also take into account diminished efficiency, workplace safety complications, and disruption to the workload or rights of co-workers.25
Courts have recognized that the risk of having an unvaccinated employee transmit the flu to vulnerable patient populations might itself rise to the level of an undue hardship, depending on the evidence presented.26 This question likely would turn on a variety of facts, including the employee’s job duties, the extent of patient contact and type of patients served, as well as the employer’s ability to rearrange work flow without wider disruption. While it is conceivable that your employer might prevail on such an undue hardship defense if it denies the nurse’s request, it should not assume that this sort of burden can be easily met.
Adding to the complexity of these considerations, others laws may impact an employer’s decision-making process. Employees may also request exemption from flu vaccination policies under the Americans with Disabilities Act (ADA), which involves a similar but not identical analysis, or for other medical reasons, including pregnancy.27 Some states may require vaccinations (with exceptions) for health care workers who treat patients. Yet other states may seek to protect employees who object to inoculation; the Oklahoma legislature, for example, is evaluating a bill that would prohibit discrimination against employees who refuse flu vaccinations. Employers must stay up to date on their state and local obligations on this issue.
All in all, Very Vexed in Voorhees, vaccination policies serve an important purpose for health care employers in safeguarding patient and worker safety. Yet, as you’ve seen, enforcement of these policies can raise delicate issues as employers must juggle their operational needs with their Title VII accommodation duties. I hope this summary has been helpful, and I encourage you to consult with counsel if you have concerns about the adoption of any policies or questions about particular accommodation requests.
1 While we will not discuss state law in any detail, New Jersey similarly requires employers to provide religious accommodations. See N.J. Stat. Ann. § 10:5-12(q).
2 U.S. Equal Emp’t Opportunity Comm’n, Questions and Answers: Religious Discrimination in the Workplace, Question 1 (Jan. 31, 2011) [hereinafter Questions and Answers].
5 Id.; U.S. Equal Emp’t Opportunity Comm’n, Informal Discussion Letter, Title VII: Accommodation (Mar. 5, 2012) [hereinafter EEOC Discussion Letter]; see also 29 C.F.R. § 1605.1; U.S. Equal Emp’t Opportunity Comm’n, Compliance Manual, Section 12: Religious Discrimination, at 12-I (Coverage) (July 22, 2008) [hereinafter Compliance Manual].
6 Questions and Answers, Question 7; see also Compliance Manual.
7 877 F.3d 487 (3d Cir. 2017).
8 Id. at 492.
10 Id. (relying on Africa v. Commonwealth of Penn., 662 F.2d 1025 (3d Cir. 1981)).
11 2012 U.S. Dist. LEXIS 182139 (S.D. Ohio Dec. 27, 2012).
12 Id. at **9-10.
13 Id. at *11.
14 Compliance Manual, at 12-I(A)(2) (Sincerely Held).
16 Id. at 12-I(A)(3) (Employer Inquiries into Religious Nature or Sincerity of Belief).
17 Compliance Manual, at 12-IV(A)(2) (Discussion of Request).
18 See United States v. Ozaukee Cty. Wis., Case No. 18-cv-343 (E.D. Wis.) (filed March 6, 2018 by the Department of Justice, challenging nursing home’s insistence that employees seeking accommodation submit a letter from a clergy member); see also Fallon, 877 F.3d at 493 n.27 (“A letter from a clergyperson is not the only way to demonstrate that one holds a religious belief. To the extent that Mercy Catholic may have believed that it could not be discriminating on the basis of religion if it fired an employee who could not produce a letter from a clergyperson, it was mistaken.”).
19 Several cases have involved plaintiffs who had been accommodated in the past by their employers but later failed to qualify due to changes in the employer’s practices. See, e.g., Fallon, 877 F.3d at 489; Chenzira, 2012 U.S. Dist. LEXIS 182139, at *2. Courts generally have not questioned the employer’s right to set workplace vaccination policies. See, e.g., Robinson v. Children’s Hosp. Boston, 2016 U.S. Dist. LEXIS 46024, at **5-6 (D. Mass. Apr. 5, 2016).
20 Fallon, 877 F.3d at 489; EEOC Discussion Letter, at 4.
21 See Compliance Manual, at 12-IV(C)(3) (Change of Job Tasks and Lateral Transfer).
22 See, e.g., Robinson, 2016 U.S. Dist. LEXIS 46024, at **18-25 (finding that “the combination of the Hospital’s efforts—allowing Robinson to seek a medical exemption, providing her reemployment resources, granting Robinson time to secure new employment and preserving her ability to return to the Hospital by classifying her termination as a voluntary resignation—amounted to a reasonable accommodation”).
23 See, e.g., EEOC v. Memorial Healthcare, Case No. 18-cv-10523 (E.D. Mich.) (filed February 13, 2018 against employer that allegedly denied new hire the option of wearing a mask as a religious accommodation, even though this option was available to employees abstaining for medical reasons); EEOC, Press Release, Saint Vincent Health Center To Pay $300,000 To Settle EEOC Religious Accommodation Lawsuit (Dec. 23, 2016).
24 Compliance Manual, at 12-IV(B) (Reasonable Accommodation).
25 Questions and Answers, Question 9.
26 See Robinson, 2016 U.S. Dist. LEXIS 46024, at **25-31; see also EEOC v. Mission Hosp., Inc., 2017 U.S. Dist. LEXIS 124183, at **7-9 (W.D.N.C. Aug. 7, 2017). The EEOC later settled the Mission Hospital case. See EEOC, Press Release, Mission Hospital Agrees to Pay $89,000 To Settle EEOC Religious Discrimination Lawsuit (Jan. 12, 2018).
27 While we will not address this issue, employers should be aware that the “undue hardship” analysis under the ADA is different than under Title VII. See, e.g., U.S. Equal Emp’t Opportunity Comm’n, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (last modified Oct. 9, 2009); Compliance Manual, at 12-IV(B) (Reasonable Accommodation).