Religious exemptions likely to be a ‘huge headache’ for employers navigating federal vaccine mandates

The Biden administration is requiring COVID-19 vaccines for federal employees, contractors, health care workers and even employees at private companies with 100 or more workers. 

Federal employees will need to be vaccinated by Nov. 22, while federal contractors, health care workers and employees at private companies have until Jan. 4, 2022 to get the jab. Private employers, however, can opt instead to have unvaccinated employees undergo weekly COVID-19 testing, according to the emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) earlier this month.

That’s if the ETS can survive the legal challenges opponents have leveled against it. The Fifth Circuit already ruled to block OSHA’s vaccine mandate, but the case has been reassigned to the Sixth Circuit court for review. It won’t really won’t be over, though, until the fat lady sings—or in this case, when the Supreme Court rules on whether OSHA’s mandate is viable. 

Since a verdict from the Supreme Court will likely take place after some of the ETS deadlines, many employers are already working to comply with the new requirements. One of the thorniest issues they must navigate is  workers’ requests for COVID 19 vaccine exemption because it conflicts with their religious beliefs. And unlike medical exemptions, accommodations for religious reasons bring up a lot more questions that employers have to work through, experts say. 

“The religious exemption is a huge headache,” says Ed Egee, the National Retail Federation’s vice president of government relations and workforce development. “It is really going to be a huge challenge to process and adjudicate these requests for religious exemption. You’re basically asking store managers and restaurant managers across this nation to suddenly become experts.”

What’s actually covered by religious exemption? 

The religious rights of employees are protected by a variety of laws, including Title VII of the Civil Rights Act of 1964, OSHA guidelines about COVID, and recent guidance from the Equal Employment Opportunity Commission, a federal agency established enforce civil rights laws related to workplace discrimination.

But these laws and legal guidance don’t mean that workers get a “free pass” just because they are personally or philosophically opposed to receiving the COVID-19 vaccine, according to recent guidance issued by Fisher & Phillips, one of top U.S. labor and employment law firms representing employers. Title VII does not protect social, political, personal preferences, or nonreligious concerns about the possible effects of the vaccine.

It’s also worth noting that only a handful of religions, including Christian Scientists and Jehovah’s Witnesses, may oppose medical care and treatments.

Michael Dorf, founder and CEO of City Winery, a restaurant group, says he ended up having a couple of conversations around religious accommodations as his company worked to put their own private vaccine mandate in place for its roughly 850 workers by Oct. 1, 2021.

“When it came to religious reasons we did ask specifics as to what those were. I ended up having a conversation with a woman who was a holistic yogi,” Dorf tells Fortune. But Dorf says he couldn’t offer accommodation based on a personal belief. 

“I said, ‘You have to make a choice. I want you to keep doing your yoga. But you’ve got to get vaccinated or you can’t come to work,’” Dorf says. “That’s kind of how we rolled with it.” 

Why the process may be difficult for employers to navigate

Putting vaccine mandates and testing protocols in place is a big task, but then sifting through individualized requests from workers seeking exemptions based on religious grounds requires extra time, manpower and education. 

Employers don’t have to require that their employees show strict compliance with particular religious standards, but they need to try to understand someone’s religious objections and work through the process, says Amanda Sonneborn, a King & Spalding partner, who focuses on employment and human capital issues. 

The sheer volume of these employee requests can be daunting to companies. 

“The EEOC has tried to provide some further guidance and assistance to employers and the most recent FAQ is helpful, but it does not help you deal when you suddenly have 400 or 500 claims for religious exemptions,” says Robert Duston, a partner at Saul Ewing Arnstein & Lehr’s labor and employment law practice.

Southwest Airlines, for example, had to reevaluate its policies for staff who filed accommodation requests based on both medical and religious grounds. The airline said workers will not be terminated or put on unpaid leave if they filed a request to the company in a timely manner, acknowledging that requests for accommodation will require a lot of work to review and validate. The company declined to release its vaccination accommodation percentages. 

But how widespread and burdensome will evaluating religious exemption requests be for U.S. employers? Well, about 16% of U.S. adults say they will definitely not get a COVID vaccine and another 4% say they’ll only get jabbed if required, according to the latest KFF COVID-19 Vaccine Monitor published Oct. 28, 2021

Among all unvaccinated workers nationwide, about 59% say they would apply for an exemption if their employer required COVID-19 vaccinations as a condition of employment, KFF reports. And about 27% of those said they would apply for a religious exemption.

Managers and HR teams will also have to undergo training to adequately evaluate the requests. 

“It’s extremely complicated and extremely burdensome,” Egee says. Especially for smaller employers who may not have access to legal resources and manpower. 

“We’re all in favor of the vaccine, but this is not going to move the needle nationwide but a few percentage points,” he added. And that incremental progress could come at a steep cost for employers. 

How do employers work through the process efficiently? 

When it comes to setting up a quick way to work through employee requests for religious accommodations, Sonneborn says she’s seen a lot of success with companies using questionnaires and online submissions. This can help employers determine whether an employee’s COVID vaccine objection is based on a personal choice or a “sincerely held religious” belief. 

The most frequent objection to the COVID-19 vaccine that Sonneborn has seen so far is that aborted fetal cells were used in development of the vaccines, and some workers do not want to get it because of that. 

Aborted fetal cells were not directly used in creating the vaccines. But both the early development of the mRNA and Johnson & Johnson vaccines did rely on fetal cell lines, which do stem from lab-grown cells that were harvested from fetal tissue decades ago. Many religious entities that object to abortion, including the Catholic Church, have issued clear guidance that permits their members to receive all COVID-19 vaccines.

Automating the religious exemption request process, however, can only go so far. Evaluating accommodation requests should be an “interactive process” that includes one-on-one discussions with employees at some point, says Ani Huang, senior vice president of the HR Policy Association, a public policy organization of chief human resource officers from large corporations. “Most of the companies that we have talked to are really committed to that interactive process and to really hearing out each employee. They’ve been largely very reasonable in how they’re working through those religious and disability accommodations.” 

That doesn’t mean that religious exemptions are just a free for all with no criteria around these types of accommodations, Huang says. Take the common fetal cell objection, for instance. When talking with workers, employers can ask if they’ve received other vaccines or whether they take certain medications, many of which also can trace some of their development to fetal cell lines, Sonneborn says. 

But there is one way that employers may be able to avoid pushing back entirely—and perhaps delay the process to a more reasonable timeline. They can simply say they are conditionally granting a worker a temporary exemption.

“The easiest route actually is to simply accept it at this time and revisit two or three months,” Duston says. 

There’s a caveat if an employer experiences ‘undue hardship’ 

Even if an employer accepts that a worker has legitimate grounds for a religious exemption, they still may not be able to grant an accommodation depending on the employee’s job function and responsibilities.  

A typical accommodation includes having the employee work remotely or wear a mask in the workplace and submit to weekly COVID testing. But that may not work in all situations and, in the case of federal employees, contractors and health workers, the masking and testing alternative is not an option. 

An employer only needs to provide reasonable accommodations to employees with sincerely held religious beliefs if those accommodations do not place undue hardship on the employer, said Doron Dorfman, an associate law professor at Syracuse University College of Law. 

Legal precedent stipulates that anything more than a “de minimis” cost constitutes an undue hardship and would therefore give the employer wiggle room to deny some requests for religious accommodations, according to Doron Dorfman, an associate law professor at Syracuse University College of Law.  

Costs, in these cases, are not only measured financially, but also through disruption to the workplace, and burden on third parties like other employees, Dorfman says.

At the end of the day, Haung says employers should aim to provide as much consistency and flexibility as possible.

 “There’s then a better chance that the company can roll this out in a way that causes the least disturbance to their employees and to their workforces and cultures,” she says.