By Debbir Kaminer
Can a company mandate its staff to be vaccinated? And what happens if an employee refuses to take the shot, citing their religious beliefs?
A number of US companies including airlines and restaurants have said they’ll require mandatory vaccines for their workforce.
In December, the Equal Employment Opportunity Commission (EEOC) – the body responsible for interpreting and enforcing federal anti-discrimination laws – issued guidelines addressing employees’ rights and Covid-19 vaccinations.
Under the new guidelines, employers are allowed to adopt mandatory Covid-19 vaccination policies. But the commission warned that any such policy would be subject to certain anti-discrimination laws.
In terms of religion, the commission points toward Title VII of the 1964 Civil Rights Act. This legislation requires employers to reasonably accommodate an employee’s sincerely held religious belief, practice or observance – but only if the accommodation can be made without “undue hardship” on the employer’s business.
The new guidelines echo earlier court rulings that take a broad definition of religion as including “moral or ethical beliefs as to what is right and wrong” that are held by the believer with the same sincerity as that of traditional religions. Whether an objection on religious grounds is accepted will depend on whether it is deemed not to cause the business “undue hardship” – a phrase that has long been the subject of court interpretation.
On this, the new guidelines abide by the standard established in a 1977 landmark Supreme Court case, TWA v Hardison. In that decision, which focused on an employee’s request for time off for religious observance, the Supreme Court defined “undue hardship” as any cost greater than “de minimis”, or too small to merit consideration. In other words, in the case of Covid-19 vaccines, employers would not be required to incur even a minimal cost in accommodating an employee’s religious objection to receiving the Covid-19 vaccine.
But there remains ambiguity. The guidelines do not provide specific examples of what constitutes a “de minimis” cost. Previous court decisions make clear that “undue hardship” should be determined on a case-bycase basis.
In terms of Covid-19 vaccinations, workplaces such as bars, gyms and restaurants could conceivably claim “undue hardship” in accommodating religious exemptions to vaccinations on the grounds that doing so increases the spread of infection among their customers and employees.
In providing its guidance, the EEOC stresses that it has authority to interpret only federal law. It warns employers to check if state and local laws provide additional protection for religious employees. For example, in New York, employers must accommodate an employee’s request for religious observance when it can be done without the employer incurring “significant difficulty or expense”.
While the current guidelines are more permissive of vaccination policies than the guidelines issued during the H1N1 pandemic, it is impossible to know the exact approach that the EEOC will take regarding religious exemptions. But confronted with the worst public health crisis to hit the US in a century, I believe the commission may be hesitant to bring litigation that broadly advocates for religious exemptions from vaccination.
Debbir Kaminer is Professor of Law at Baruch College, a City University of New York institution.
* The views expressed here are not necessarily those of The Star or Independent Media.
The Star