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Comment: Religious Exemptions to Employer Vaccine Mandates in the post-Groff legal landscape.



How much does an employer have to do to accommodate its employees’ religious beliefs? Until recently, the law would have answered “not much.” After a recent Supreme Court decision, the answer is now “quite a bit.”


This question became more than academic during the throes of the Covid-19 Pandemic. After the Covid-19 vaccination was developed, many people feared the vaccine because of real, rumored, or even imagined concerns as to its short and long-term effects and many refused to receive it. The Executive Branch, citing the lagging vaccination rates, enacted an emergency regulation by OSHA requiring all covered employers to mandate employee vaccinations, but the Supreme Court struck this down as an invalid exercise of the OSHA’s power.[1] Nevertheless, private employers began requiring their workers to receive the vaccination as a condition of their continued employment. These private employer vaccination policies were, generally, upheld by the courts as a valid expression of the “at-will employment doctrine.”[2] In response, employers found themselves fielding a flood of often bad-faith claims of “religious objections” to their vaccine policies. This did a tremendous disservice to people with legitimate, sincerely held religious beliefs against receiving the vaccine, because they often found themselves vying against frustrated Human Resources departments struggling, and often failing, to respond correctly to a torrent of exemption requests. All of this pressed the question “how much does an employer have to do to accommodate their employees’ religion?” to a fever pitch.


Well, what does the law say? Title VII of the Civil Rights Act says that it is unlawful for an employer to "discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion[.]"[3] Title VII says "religion" includes "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."[4]


In other words, employers are required to “accommodate” a religious observance or practice unless the employer can prove that doing so is an “undue hardship.”


That’s great, but what exactly does that mean? In practice, to win on a suit for religious discrimination, the employee prove that (1) he holds a sincere religious belief that conflicts with an employment requirement, (2) he has informed the employer about the conflicts, and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement. [5] If the employee can do this, the employer then gets a chance to prove that it could not reasonably accommodate the employee without undue hardship.”[6]


Now we’re getting somewhere. In our Covid-19 example, an employee would tell their employer that they have a religious objection to receiving the vaccine and so request an exemption from the vaccine policy. If the employer refuses, and then fires them for not getting the vaccine, they could sue for religious discrimination. But, if they sue, the employer may then defend by proving the exemption is an “undue hardship.”


So, what exactly does “undue hardship” mean? Historically, the employer only had to show only a “more than de minimis cost” in order to satisfy the “undue hardship” standard. “De minimis” means “lacking significance or importance” and refers to something “so minor as to merit disregard.”[7] This was, without question, an exceptionally low bar for an employer to reach. Basically, if the employer had any better objection than “meh, we just didn’t feel like doing it”, its explanation would pass muster. Changing other employees’ schedules to accommodate a Sunday religious observance. Permitting an employee to wear a Yarmulke or prayer scarf when the employer has a uniform. All of this was more than “de minimis.

During Covid-19, this “de minimis” bar significantly impacted religious objectors’ ability to meaningfully bargain with their employer for reasonable accommodations. The employers’ stated concern was spread of Covid-19 in the workplace to employees and staff.[8] Many religious objectors asked their employers to permit them to instead have regular Covid-19 testing and symptom screening before entering the workplace as an alternative to requiring the vaccine. Any of these requests are more than “de minimus,” so they could be refused. Requests for telework were right out. Some, but not all employers offered their religious objectors the supposed “accommodation” of an “indefinite, unpaid leave from work until the conclusion of the Covid-19 pandemic.” This, given the longevity of the virus, functioned as a termination. But, under the “de minimus” standard, they did not have to do even that.

This may have all been a reasonable response to someone who is suddenly claiming a bad-faith “religious objection” because they believe the vaccine will make them turn magnetic or inject them with a government microchip. But, it is not such a good outcome for a fundamentalist Christian who wishes to avoid the vaccine because they believe accepting any product, like the vaccine, that is produced through the use of aborted human fetal cells is a grave sin.


The “de minimus” standard is no longer the law. In Groff v. DeJoy[9] the Supreme Court revisited the standard that should be applied to the “undue hardship” requirement. Groff was a postal worker and Evangelical Christian. He had requested to be excused from work on Sundays. This would have required USPS to schedule others to work on Sunday to accommodate the time off and they refused. Groff lost in the courts below found that rescheduling other workers was “more than de minimis.” The Supreme Court struck the de minimis standard and held that, instead, that the employer must show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business” based on “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of the employer.”


In Groff, this new standard meant that the USPS could be required to reschedule other delivery persons to accommodate the religious day of rest. The standard has not been considered -yet- in the context of a vaccine exemption case. However, it certainly suggests that employers would be well advised to be significantly more lenient when they receive such a request.

 

 

Collin Nyeholt is an Associate Attorney at the Law Offices of Casey D. Conklin, PLC.  He is a fourteen-year practitioner with concentration in employment law and state and federal litigation regarding same. He is licensed to practice in the State of Michigan, the federal Eastern and Western Districts of Michigan, the Sixth Circuit Court of Appeals and the United States Supreme Court. He can be reached at:  4780 Okemos Road, Suite 2, Okemos, MI 48864, (517) 522-2550, collin@caseydconklin.com.    


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[1] Nat’l Fed. Of Indep. Business v. OSHA, 595 US ___ (2022).

[2] An employer is permitted to hire, fire, promote, demote, or discipline its employees for no reason, or any reason at all, even a poor one so long as the reason is not within one of the specifically delineated employment statutes or public policy. In Michigan, as in most states, there is no specific statute prohibiting an employer from requiring vaccinations as a term or condition of employment.



[3] 42 U.S.C. § 2000e-2(a)(1)

[4] 42 U.S.C. § 2000e(j).

[5] Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987).

[6] Id.; see also Cooper v. Oak Rubber Co. , 15 F.3d 1375, 1378 (6th Cir. 1994).

[8]There was reason to question this motive. As National Federal of Independent Business v. OSHA, 595 US ____ (2022) demonstrated, there had been attempts by the Executive Branch to use employer vaccination policies to coerce objectors to receive the vaccine. There is reason to believe that this consideration also impacted individual employers’ policies in the same way.

[9] 22-174 (US Sup. Court, 6/29/2023)

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