Employers may seek additional information regarding an employee’s religious beliefs where the employee seeks to be excused from participating in a mandatory influenza vaccination program for religious reasons, according to the Equal Employment Opportunity Commission’s Office of Legal Counsel. The opinion came in an informal discussion letter in which the Office responded to an inquiry regarding religious accommodations under Title VII of the Civil Rights Act of 1964 in the context of mandatory vaccination programs. The letter highlights the limitations of such an inquiry and is subject to the EEOC’s caution that the letter provides only “an informal discussion of the noted issue and [did] not constitute an official opinion of the Commission.”
An employee asked the Commission for guidance over his desire to be excused on account of religious beliefs from receiving a vaccination required under his employer’s mandatory vaccination program. According to the discussion letter, the employee forwarded to the EEOC the employer’s policy and a letter from his employer regarding his request. The employer’s policy provided for clergy verification of the employee’s religious beliefs, and the employer’s letter offered the employee the opportunity to meet with the employer to explain his request for an accommodation. The employer’s letter also stated that the requested information regarding his religious beliefs need not come from a clergy member or congregant, but from “a person who can attest that [his] religious beliefs [were] sincerely held and [did] not permit [him] to receive the influenza vaccine.” The discussion letter also indicated the employee had sent a letter from an attorney questioning the constitutionality of an employer’s scrutiny of the employee’s religious beliefs.
The Counsel’s Office letter observed that, in general, an employer may be required to excuse an individual from a mandatory vaccination policy as a requested religious accommodation under Title VII of the Civil Rights Act or as a disability accommodation under the Americans with Disabilities Act, if doing so would not pose an undue hardship. The EEOC next explained that, when a religious accommodation is requested, the employer is permitted to obtain supporting information, particularly since Title VII defines religion broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect. 29 C.F.R. § 1605.1. The discussion letter stated, “[S]ince idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious belief or practice.” EEOC Compliance Manual Section 12: Religious Discrimination (2008) (available at www.eeoc.gov/policy/docs/religion.html).
The Counsel’s Office further explained that when an employer makes a reasonable inquiry for such supporting information, “the employee must cooperate or he may not be entitled to accommodation.” Further, an employer may deny the accommodation request if it would pose an undue hardship in the circumstances; the employer also may impose other infection control measures on those excused from vaccination, such as a mask requirement, if not done for retaliatory or discriminatory reasons.
Addressing the employee’s constitutional concerns regarding the employer’s inquiry, the EEOC noted, “Title VII case law has permitted appropriate employer as well as judicial inquiry into these issues.” See Compliance Manual at pages 12-14, 48-51; Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066, 1076-78 (N.D. Ind. 2001) (union’s refusal to provide accommodation unless employee produced corroboration that his accommodation request was motivated by a sincerely held religious belief did not violate Title VII’s religious accommodation provision, but cautioning that holding was limited to “the facts and circumstances of the present case” and “the inquiry [into sincerity] and scope of that inquiry will necessarily vary based upon the individual requesting corroboration and the facts and circumstances of the request”).
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A fair reading of the discussion letter suggests that the employer’s policy and follow-up letter were within the EEOC’s parameters for interpreting Title VII and reminds employers that employees must comply with reasonable requests for information.
Mandatory vaccination programs have become increasingly common, particularly in the health care sector. Employers considering such programs should be prepared to respond to requests for religious or disability accommodations and possibly offer other infection control alternatives to vaccination, such as mask requirements. Before implementing such programs, however, employers should consider possible religious and disability accommodation issues not only under Title VII and the ADA, but also analogous state and local laws.