US employers get faith with vaccination mandates – business insurance
(Reuters) – As coronavirus infections rise again, U.S. companies that require vaccinations are faced with an awkward question rarely asked by an employer – what is an employee's religious beliefs?
The parent company of Google Alphabet Inc., Walmart Inc., and Tyson Foods Inc. are among the growing list of employers who need some or all of their employees to get a COVID-19 vaccine.
But with every mandate there are exceptions. Employers must make reasonable provision for employees who cannot be vaccinated for medical reasons or who refuse to be vaccinated because of "sincere religious beliefs," according to the US Equal Opportunities Commission.
"It's such a sensitive issue for both parties," said Erin McLaughlin, a Buchanan Ingersoll & Rooney attorney who advises large employers.
"This issue has come to the fore as we see more and more mandatory vaccination guidelines," she said. She said there have been more regulatory guidelines on disability exemptions than religious beliefs, adding to the challenge when companies draft vaccine guidelines.
The widespread availability of coronavirus vaccines in the United States caused infections to decrease dramatically from January to June, but mostly due to the Delta variant, the current 7-day moving average of new cases every day is according to the US centers for 33.7% increased disease control and prevention.
The EEOC generally defines religion as encompassing moral and ethical beliefs and may even include resistance to injections of certain chemicals, said Raeann Burgo, an attorney at Fisher Phillips, a law firm that represents companies.
Legal experts said it could be months before COVID-19 vaccine lawsuits surfaced, but there are precedents to serve as a guide.
Cincinnati Children's Hospital Medical Center fired customer service representative Sakile Chenzira in 2010 for refusing a flu vaccine for being vegan. Ms. Chenzira sued and the hospital wanted to dismiss the case because she argued that she mistook a diet for a religious belief. The federal judge ruled in their favor based on the sincerity of their views. The parties came to an agreement privately.
“As an employer, you can find out whether an employee has genuine religious beliefs. It's just kind of a difficult investigation, ”said Brian Dean Abramson, author and vaccine law specialist.
He said employers need to be careful not to invade or harass workers 'privacy, and companies need to be aware that workers' religious views can change over time.
Alina Glukhovsky was fired from her job as a skin specialist in a Chicago salon in 1990 after refusing to work on the Jewish holiday of Yom Kippur. She has sued.
She hadn't asked for vacation in previous years, and she testified that she wasn't particularly religious when she started working in the salon in 1982, but her beliefs developed after her father died and a son was born .
The court ruled in their favor.
Ms. Burgo said companies should assume that employees who apply for an exemption are sincere adhering to their beliefs. She said the bigger challenge might be to accommodate exceptions, which the employer can refuse if doing so creates an "undue burden" on safety and efficiency in the workplace.
Brett Horvath cited religious beliefs in 2016 when he turned down a tetanus, diphtheria, and whooping cough vaccine required by the Leander City Fire Department, Texas, where he worked as a driver and pump operator.
The department gave him a choice. Instead of being vaccinated, he could wear a mask and take tests or switch to a code enforcement job at less convenient hours. He refused and was released.
He sued and last year the U.S. 5th District Court of Appeals upheld the dismissal.
Lawyers said vaccine shelters like regular testing and masking had become standard since the pandemic began and this could reduce disagreement over vaccine mandates.
However, workers can also request to work from home, which is a challenge for reluctant employers to explain why mandatory face-to-face attendance is essential after months of remote work.
"There will be some employers who go wrong before we go through the process to get pretty good established guidance on how to use it, especially with vaccines," said Ms. McLaughlin, the lawyer for large employers.