Key Points

• Mandatory vaccination programs may be permissible at federal level without Title VII religious exemption.
• The equivalent state religious exemption is still viable in California.
• Social, political, or personal preference objections about the possible effects of the COVID-19 vaccine do not qualify as “religious beliefs” under the Title VII religious exemption.

DOES V. MILLS

On October 29, 2021, in a 6-3 decision, the United States Supreme Court in Does v. Mills denied injunctive relief to employees seeking to enjoin implementation of the State of Maine's new regulation requiring certain healthcare workers to receive COVID-19 vaccines. Unlike California, Maine’s rule contains no exemption for those whose sincerely held religious beliefs preclude them from accepting the vaccination. Under the Maine law, employees can avoid the vaccine mandate only if they produce a “written statement” from a doctor or other care provider indicating that immunization “may be” medically inadvisable. Applicants for injunctive relief have to demonstrate that they have a likelihood of prevailing on the merits and serious irreparable injury would occur without the injunction while the court decides the merits of the case.

Some employees had already lost their jobs; others asked the Court to enjoin further enforcement of Maine’s new rule as to them, until the Court decides whether to accept their petition for certiorari. The employees claimed that receiving the COVID-19 vaccines violates their faith because of “an impermissible connection between the vaccines and the cell lines of aborted fetuses. They allege that the vaccines relied on aborted fetal cell lines to develop their vaccines, and as such, violates foundational principles of their religious faith.

After noting that the employees “served patients on the front line of the COVID-19 pandemic with bravery and grace for 18 months,” Justices Gorsuch, Thomas and Alito dissented stating they would grant the injunctive relief, finding that the employees are likely to succeed on the merits finding it to be discriminatory: “The State allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers. But the State refuses to allow those invoking religious reasons to do the very same thing.”

Justice Gorsuch, writing that the employees’ “plight is worthy of our attention. I would grant relief," ends by concluding that Maine's law “borders on the irrational.”

The Does v. Mills case does shed light on how receptive overall federal courts will be to mandatory vaccination programs, perhaps even without a religious accommodation exemption. Indeed, a federal court just upheld a vaccine mandate refusing to agree to Chicago firefighters, paramedics and other city workers emergency request to halt city and state vaccine mandates.

EEOC October 2021 Guidance Recognizes and Clarifies Religious Exemption

On October 13 and 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) revised its Covid-19 technical guidance (“Guidance”) clarifying to some extent how employers should address religious accommodations requests to vaccine mandates and other updated guidance. While the EEOC does not provide definitive Guidance, it does provide a more robust discussion of the parameters of the exemption than in prior Guidance. Brief highlights appear below.

COVID-19 Vaccinations: EEO Overview

The EEOC confirms that, under the ADA, Title VII, and other federal employment nondiscrimination laws, an employer may require all employees physically entering the workplace to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. The EEOC further reminds employers that “[i]t would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.” https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

K.3. K.16 – K.21. Employers may encourage employees and their family members to be vaccinated against COVID-19 without violating the ADA and GINA. Further, an employer requiring an employee to show documentation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.

K.4. An employee’s COVID-19 vaccination is confidential medical information under the ADA. Like all medical information, it must be kept confidential and stored separately from the employee’s personnel files under the ADA.

K.9. The EEOC confirms that when an employer asks employees whether they obtained a COVID-19 vaccination, the employer is not asking the employee a question that is likely to disclose the existence of a disability. Therefore, requesting documentation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.

K.13. If an employee chooses not to receive a COVID-19 vaccination due to pregnancy and seeks an exemption from a vaccination requirement due to pregnancy, the EEOC takes the position the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.

K.16. The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.

K.17.Under the ADA, there are limits on the value of the incentive employers may offer to employees for voluntarily receiving an employer or its agent administered COVID-19 vaccination. The value of the incentive (both rewards and penalties) may not be so substantial as to be coercive.A very large incentive could make employees feel pressured to disclose protected medical information to their employers or their agents. This incentive limit does not apply if an employer offers an incentive to encourage employees to be voluntarily vaccinated by a health care provider that is not their employer or an agent of their employer.

GINA: Employer Incentives for Voluntary COVID-19 Vaccinations

K.18. GINA does not limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer.  If an employer asks an employee to show documentation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member or any other form of genetic information. GINA’s restrictions on employers acquiring genetic information therefore, do not apply.

Vaccination Mandates – Title VII and Religious Objections

L.1. When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

L.2. An employer does not have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value; it may ask for additional information. If an employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, it can make a limited factual inquiry seeking additional supporting information.

Title VII does not protect social, political, or economic views, or personal preferences or nonreligious concerns about the possible effects of the vaccine—these do not qualify as “religious beliefs” under Title VII.

The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief, whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether 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); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant, an individual’s beliefs may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor is determinative.

L.3. Title VII does not require the employer to provide the accommodation if an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations. Certain considerations include: whether the employee works outdoors or indoors, works in a solitary or group work setting, has close contact with other employees or members of the public, medically vulnerable individuals, the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer). Courts have found undue hardship where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

The Supreme Court has held that requiring an employer to bear more than a “de minimis,” cost to accommodate an employee’s religious belief is an undue hardship. Costs include not only direct monetary costs but the burden on the conduct of the employer’s business—including, the risk of the spread of COVID-19 to other employees or to the public. However, the EEOC notes that an employer cannot rely on speculative hardships.

Note, California has a higher standard for proving undue hardship than is required under federal law. In California, an employer must prove that the religious accommodation in question causes a “significant difficulty or expense” to the business.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, it does not have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs. The determination of whether a particular proposed accommodation imposes an undue hardship is unique, looking at: the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.A mere assumption that many more employees might seek a religious accommodation in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

L.5. An employer does not need to provide the religious accommodation preferred by an employee if there are other accommodations that are effective in eliminating the religious conflict.

L.6. An employer may later reconsider religious accommodation because religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations. An employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Conclusion

This area is one that continues to evolve based upon many considerations, including the rate of COVID-19 cases, Biden Administration mandates and local health orders. Employers should continue to consult with counsel.