Nearly two years into the coronavirus pandemic, COVID-19 vaccines are widely available across the country, and some workplaces are now requiring them.
But employees can file a religious exemption, asserting that getting the vaccine would go against their religious beliefs.
But what does an employee need to say or show in order to get that exemption? And does an employer have the right to push back? NHPR asked a lawyer.
All Things Considered host Peter Biello spoke with Olivia Bensinger, an employment lawyer at Shaheen & Gordon, about the rights of both employees and employers when it comes to religious exemptions to the COVID 19 vaccine. Below is a transcript of their conversation.
Peter Biello: So, broadly, what right do workers in New Hampshire have to seek a religious exemption to a workplace policy or mandate?
Olivia Bensinger: So under Title VII, employees have a right to seek a reasonable accommodation for any of their religious beliefs, including for vaccine exemptions. So how that would happen is that the employee would put in a request to the employer, saying, 'I have a sincerely held religious belief that prevents me from doing X. And I would like to request an accommodation.' And the case of COVID vaccines it would be like 'I have a sincerely held religious belief against this COVID vaccine, that something's wrong with it according to my religion, and I don't want to take it.' And they could propose certain accommodations for not taking it like getting tested every week or wearing masks, or the employer could provide those accommodations as well. But that's the basic right.
Peter Biello: I see. So, a religious exemption, in this case, means any sincerely held religious belief.
Olivia Bensinger: Yeah.
Peter Biello: So, if an employer is attempting to enforce a vaccine mandate for those attempting to claim that they have a sincerely held religious belief that prevents them from taking this COVID 19 vaccine, what kind of paperwork or proof do they have to provide, if any, to the employer to say, Here's my proof that I do indeed have this sincerely held religious belief?
Olivia Bensinger: So, they're not required under federal or New Hampshire law to provide anything in writing. I think there have been some employers who have requested some things in writing, but under the current guidelines from the Equal Employment Opportunity Commission, all that the employer can do in response to an employee's notice of a sincerely held religious belief is to take a limited factual inquiry. So, they can ask a few questions about what's the nature of the belief or the objection to the vaccine, especially if they have a reason to believe it's not really religious. It might be political or personal. And depending on what the employee says, the employer can say, 'Hey, that, whatever you just said to me is not religious.'
Peter Biello: So, does that then mean that the burden of investigating and deciding whether or not it's legit really falls on the employer? The employer has to look at the employee's past behavior or perhaps statements made on social media and say 'This is inconsistent with your past behavior.'
Olivia Bensinger: It's difficult for the employer to say 'This is inconsistent. I don't believe you.' The burden that then shifts to the employer is mostly then to prove that providing an accommodation would be an undue hardship on the employer. It's much easier to say like 'You are in close proximity with the public and staff, and we don't think that the alternatives to vaccination really protect other employees in a workplace,' rather than pushing back on the actual nature of the employee's sincerely held religious belief.
Peter Biello: So, employers can essentially say, 'I acknowledge and believe that you have this sincerely held religious belief. But giving you an exemption would make it impossible for you to do your job and therefore we cannot give it to you.'.
Olivia Bensinger: Correct, yes.
Peter Biello: I see. So, if you were an employee being questioned about or being challenged about your request for a religious exemption, what are your rights? What can you do in that case?
Olivia Bensinger: The things that the employer can look at for what an undue hardship are, are cost and the nature of the work, right? So if you're a remote employee and your employer tells you that that's an undue hardship, that you're not vaccinated, I think at that point you have a right to push back. 'I literally don't see anyone.' So various scenarios like that. But I mean, your employer does have the right to fire you if they don't feel like they can accommodate your exemption. So as an employee, unless you think that you've been fired for retaliatory reasons, there's not much of a right past the initial request for the religious exemption
Peter Biello: As we talk about whether or not vaccines are necessary to do one's job, I'm thinking of all the people in the medical industry and we're hearing of people in the medical profession being laid off for their refusal to take the vaccine. In your mind, what kind of legal defense would they need to argue that they have been wrongly terminated?
Olivia Bensinger: Especially in the medical industry, the employers really do have full rights to say 'That's not good enough. We cannot accommodate you.' Pre-COVID 19, Maine passed a law saying there would be no religious exemptions for medical workers in the case of vaccinations. And that was challenged when they mandated that all health care workers be vaccinated by a certain date. And as of right now, the 1st Circuit ruled that the the state had an interest in keeping their health care workers safe and on the job and upheld the law removing the religious exemption and the Supreme Court decided not to take the case. So right now, that stands. So I think if that law can stand, then employers, especially health care employers not accommodating religious exemptions would also likely be held up.
Peter Biello: If an employee is asking for a religious exemption and they're being challenged about it, at what point, in your opinion, would it be wise for them to get a lawyer involved?
Olivia Bensinger: If they request a religious exemption that they believe is reasonable and that there are accommodations that can be reasonably made to keep them and other employees in the workplace safe, then if they're denied that religious exemption, that's when I would get a lawyer involved to either appeal that decision internally within the organization or, of course, to take on a wrongful termination case if they are terminated for refusing to get vaccinated. And of course, it's not a guaranteed win because there are the factors to look at in undue hardship peace, but that's where it'll really come down to in most cases, it's whether there's an undue hardship on the employer.
Peter Biello: Olivia Bensinger is an employment lawyer with Shaheen & Gordon. Olivia, thank you very much for your time.
Olivia Bensinger: Of course. Thank you.
Peter Biello: And I should mention that Shaheen & Gordon is a financial supporter of NHPR.
