Can my employer really fire me for refusing the Covid-19 vaccine? Yes, they can. Like all things in law, however, the answer isn’t that simple. Under federal law, any employer requiring the Covid-19 vaccine must grant accommodations for sincerely held religious beliefs and legitimate medical exemptions as long as those exemptions don’t create undue hardship for the employer. This article addresses only accommodations sought based on sincerely held religious beliefs.
Sincerely Held Religious Beliefs
The Equal Employment Opportunity Commission’s (EEOC’s) guidance on COVID-19 and EEO laws states that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice or observance.”
According to the EEOC guidance, employers should only request additional information about an employee’s religious belief if they have an objective basis to question whether the employee is sincere in his or her claim of religious exemption or to question whether the request for accommodation is actually religious in nature.
The “religious belief” categorization is very broad under Title VII and can be extremely difficult to succeed in challenging. The EEOC stated in compliance manual on religious discrimination that the definition of “religion” extends to traditional religions as well as 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.”
If an employee objects on vague “constitutional rights,” political views, or various “natural laws,” then the employer may reasonably conclude that the objection is not based in sincerely held religious beliefs and may be denied. Likewise, any objections based on economic, social, or personal preferences are typically not going to pass religious exemption muster.
Many, many employers are receiving objections based on the safety, toxicity, manufacturing, efficacy, and trustworthiness of “Big-Pharma” and the government. These are not religious beliefs, and accommodation requests based on these ideologies may be denied.
If an employer has an objective basis for questioning the religious belief, or the nature or sincerity of the belief, they should seek additional supporting information necessary to make a reasonable business decision.
Four Factors to Consider
Employers should consider four factors established by the EEOC in its questions and answers on religious discrimination in the workplace. These factors might undermine an employee’s assertion that he or she sincerely holds the religious belief at issue and include whether:
- The employee has behaved in a manner markedly inconsistent with the professed belief.
- The accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons.
- The timing of the request renders it suspect—for example, it follows an earlier request by the employee for the same benefit for secular reasons.
- The employer otherwise has reason to believe the accommodation is not sought for religious reasons.
For example, another common exemption request is based on an employer’s belief that the vaccine was manufactured using fetal cell lines. The J&J vaccine used fetal cell lines in the initial stages of their vaccines. Pfizer and Moderna used fetal cell lines to test the efficacy of the vaccine. In response, some employers are asking for the employee’s vaccine records to determine whether the employer has had a chicken pox vaccine, rubella, Hep A, or specific rabies vaccines, as they too are derived from fetal cell lines. Or, employers are asking the employee to further certify that they do not take other medicines commonly derived using fetal cell lines such as Tylenol, Motrin, and other common drugs.
Or, actual doubt that a belief is sincerely held could arise if an employee routinely gets a flu shot, but then now asserts his or her religious prohibits him or her from piercing their skin.
Like most things employment law, there are landmines everywhere. For instance, if acting contrary to a religious belief is reasonably explained, the inconsistency may not be enough to conclude a belief is not sincere and employees with disabilities may need to be excused from a vaccine mandate.
Employers must try to accommodate employees with sincerely held religious beliefs, but they do not have to provide accommodations that would result in “undue hardship.”
What is undue hardship you ask? The standard for undue hardship is lower under Title VII—which prohibits religious discrimination—than under the Americans with Disabilities Act. Under Title VII, undue hardship has been defined as “more than a minimal burden.”
Employers need to consider the monetary cost to the company and whether the accommodation will impose a direct threat to others. Because COVID-19 has killed more than 700,000 people in the U.S. and unvaccinated people are more likely to get COVID-19 and spread COVID-19 to others, including their co-workers, employers have a compelling argument that allowing unvaccinated employees into the workplace alone is an undue hardship.
The inquiry does not end there, however. Employees must consider what alternatives exist for the employee seeking an accommodation. Those alternatives could include regular COVID-19 tests (at the employee’s expense), required mask-wearing, remote working, and more intensive social distancing.
So, while an employee could technically be entitled to a religious exemption accommodation, if there are no reasonable alternatives or accommodations that work for both the employee and employer, the employer may have no other choice but to terminate the employee.
And, all terminations, even those well-grounded in law and fact, carry with them the possibility of Commission action or litigation. This is why you should always enlist an experienced employment lawyer when making and executing on dicey termination decisions.
Jessica Green, Esq.
An attorney in Lipson Neilson’s Las Vegas office. Ms. Green advises and counsels employers on all aspects of employment law, and helps clients avoid problems by reviewing and updating employee handbooks, workplace policies, severance agreements, employment contracts, confidentiality agreements, and non-compete agreements.
Ms. Green has successfully represented employers in state and federal courts as well as federal and state administrative agencies including the United States Equal Employment Opportunity Commission (EEOC), the Nevada Equal Rights Commission, the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration, the Department of Labor, the Office the Nevada Labor Commissioner, and the Nevada Department of Employment Training, and Rehabilitation, among others.
In one of her cases, the Ninth Circuit Court of Appeals affirmed the District Court’s granting of Ms. Green’s Motion for Summary Judgment. The victory obtained complete summary dismissal of all Plaintiff’s claims including claims of race, age, genetic information, and disability discrimination, as well as retaliation, tortious discharge, and intentional infliction of emotional distress claims.
If you have any questions about how your company’s policies comply with current COVID-19 laws, please contact me at 702-382-1500 or JGreen@lipsonneilson.com.
Founded in 1985, the Lipson Neilson law firm services clients across the country from its offices in Las Vegas, Reno, Phoenix, Colorado Springs, and Bloomfield Hills. The firm is widely known for its excellence in litigation and offering invaluable insight and experience to its clients across all industries.