“In an hour, I have to appear in a Zoom meeting before a panel of 5 administrators who want 45 minutes to scrutinize and question my religious beliefs. If I refuse, I will be fired.”
The caller who said this represents thousands who have sought Liberty Counsel’s guidance to clarify their legal rights regarding refusing COVID-19 shots. Across the country, thousands of employees are faced with challenges to their religious exemption requests. Employers are answering their requests with skepticism. They’re requiring time-consuming questionnaires to be filled out, demanding names of clergy, quotes from religious texts, lists of past vaccines taken as well as the disclosure of other private health-related information—all to question whether the employee really believes in their religious statement or is simply using faith as a crutch to get out of the shot requirement.
Do employers have the right to make such a demand?
Joe Biden issued a mandate for private employers with 100 or more employees. This mandate is being challenged in the courts and may eventually be overturned but is currently still in effect for approximately 80 million workers in the United States.
Because of the mandate, employers have the right to ask questions about an employee’s belief, but employees also have rights. The First Amendment to the U.S. Constitution allows Americans the freedom to practice their faith.
According to the Equal Employment Opportunity Commission (EEOC), “Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.”
The law doesn’t give a lot of guidance when it comes to defining religious beliefs but discourages discrimination based on one’s faith. “Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs,” the EEOC states. “The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.”
A religious belief does not have to be recognized by an organized religion, nor do an organization’s clergy members have to agree with each other on every point. As long as the person can provide a statement documenting how his “religion” has been actively practiced over time and can state why his beliefs are sincerely held, the employer does not have the right to further question the employee’s religious exemption request.
Further, when an employer rejects an employee’s religious beliefs, it could be considered harassment. It is illegal to harass a person because of his or her religion. According to the U.S. Customs and Border Protection, “Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the agency liable.” The harassment could turn severe and result in loss of employment.
Employers do not have the right to harass, and employees have the right to be selective in how they respond to an employer’s request for information. The employee does not have to give information that does not specifically apply to their request for accommodation. In the event that the employer rejects the request for a religious exemption, an employee has the right to ask how the employer is qualified to judge a person’s deeply held religious belief and ask for a list of the names and religious credentials of those who rejected the employee’s religion.
Due to the significant number of requests employers are receiving, some have become suspicious that employees are faking their faith to get a religious exemption to avoid COVID shots. In that case, the employer simply needs to verify the applicant’s religion. But as suspicious employers pick apart religious requests, they could inadvertently be setting themselves up for a discrimination lawsuit from the EEOC. Upon rejection of a religious exemption request, the employee can file a complaint with the EEOC.
Under Title VII, individuals with sincerely held religious beliefs must be accommodated. Employees are protected in all aspects of employment, including hiring, firing, promotions, pay and benefits, and requests for accommodation. The law requires employers to provide reasonable accommodation to an employee unless the accommodation would result in “undue hardship” to business operations.
The EEOC states: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
The employer must demonstrate that the proposed accommodation brings more than minimal cost and burden on the employer’s business operations and infringes on or impairs workplace safety. However, employees seeking exemptions can remind their employer that during the COVID-19 pandemic, the employer has already made certain workplace accommodations by requiring employees to mask, social distance and test regularly. If employers want to keep employees, they should continue making similar accommodations.
Even if a future ruling were to go against the employee’s religious practice in favor of enforcing workplace mandates, the way the employer conducts themselves during this waiting period is still subject to law.
Employees: Document everything related to the exemption request in writing. And remember, you still have rights under the law.
