We are troubled by widespread reports that employers are firing or denying employment opportunities to unvaccinated workers without regard to potential religious or medical accommodations. See, e.g., Susan Edelman & Dean Balsamini, NYPD Puts 4,650 Vaccine Firings on Hold: Insiders, N.Y. Post, May 21, 2022 (reporting that nearly 5,000 NYPD employees are facing potential termination, including an undisclosed amount whose medical and exemption requests were rejected); Liz Hamel et al., KFF COVID-19 Vaccine Monitor: October 2021, Kaiser Family Foundation (Oct. 28, 2021) (1% of all adults lost their job due to the vaccine requirement; 8% of all adults reported that they would ask for an exemption). Government workers may have recourse under civil service laws and labor agreements, and even at-will employees cannot be easily fired here. While we are not promoting an anti-vaccine message, and indeed believe most should be vaccinated, we are concerned about employers disregarding the legally mandated accommodation process.
To be clear, the termination of workers for refusing the COVID-19 vaccine in many instances contravenes Federal, State and City laws, unless they are provided with an opportunity to seek exemptions for sincerely held religious beliefs and medical reasons. Notwithstanding the headlines which suggest terminations of all vaccine refusers are permissible, relevant law requires employers to carefully consider requests for religious or medical accommodations.
Regulatory and Statutory Authority
On December 13, 2021, New York City’s Commissioner of Health and Mental Hygiene issued an Order requiring COVID-19 vaccinations in all workplaces throughout New York City. While the Order requires that “workers must provide proof of vaccination against COVID19 to a covered entity before entering the workplace, and a covered entity must exclude from the workplace any worker who has not provided such proof,” the Order also requires employers to provide “reasonable accommodations for medical or religious reasons.” Ord. of the Comm’r of Health & Mental Hygiene to Require COVID-19 Vacc’n in the Workplace, ¶¶ 1, 5 (Dec. 13, 2021). The City’s workplace vaccine mandate is modeled after President Biden’s Executive Order of September 9, 2021, which ordered federal agencies to “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” Exec. Order No. 14042, 86 FR 50985 (Sept. 9, 2021). The exceptions include accommodations for religious or medical reasons. Neither the City’s workplace vaccination requirement nor President Biden’s executive order requires employers to fire unvaccinated employees.
Religious and medical exceptions to workplace vaccine mandates are codified in Federal, State, and City laws. Under Title VII of the Civil Rights Act of 1964, “when an employee has a genuine religious practice that conflicts with a requirement of employment, [an] employer, once notified, must offer the aggrieved employee a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship.” Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (citing 42 U.S.C. § 2000e(j)). Likewise, the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) provide for employee medical accommodations, so long as those accommodations do not cause the employer undue hardship. 42 U.S.C. § 12112(b)(5)(A).
State and City laws are similar, in that they too provide for religious and medical accommodations. State law requires employers to accommodate “sincerely held” religious beliefs or practices, “unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.” N.Y. Exec. Law § 296(10)(a). Further, medical accommodations are also subject to the undue-hardship standard. Id. § 296(3)(a)-(b).
City law provides for a similar accommodation process. Employers in New York City must “make reasonable accommodation to the religious needs” of their employees, so long as those needs do not impose an undue hardship on the employer. N.Y.C. Admin. Code §§ 8-107(3)(a)-(b). Like Federal and State law, a similar standard for medical accommodations applies under City law. Id. § 8-107(28)(a).
Many employers may doubt whether employees are seeking religious exemptions to the vaccine requirements on account of a sincere religious belief. New York City’s Guidance on Accommodations for Workers feeds into this skepticism by suggesting that employers should actively question those workers seeking religious-based vaccine exemptions by asking them to provide a general vaccine history, “explain why those vaccines were not against their religion,” and a “list/describe other commonly used medicines, food/drink, or other substances they do not allow to enter their bodies.” N.Y.C. Law Dep’t, Guidance on Accommodations for Workers, at 3 (Dec. 20, 2021). Moreover, if the religious-based exemption request is based on an objection to the vaccine because “it was developed and/or tested using fetal cells that the worker is concerned may have been the result of an abortion,” then employers are advised to ask workers whether they “take medications such as ibuprofen (Advil), acetaminophen (Tylenol), or anu other medications similarly developed or tested using fetal cell derivative lines.” Id. New York City’s guidance then advises employers that if a worker answers affirmatively, then “[s]uch behavior would be inconsistent with the religious belief, and generally means the worker would be denied an accommodation.” Id.
This guidance potentially conflicts with that of the U.S. Equal Employment Opportunity Commission (EEOC) and New York City’s own Commission on Human Rights (NYCCHR). See, e.g., EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other Laws, Technical Assistance Questions and Answers, § K.12 (updated Mar. 14, 2022) (citing 29 C.F.R. § 1605.1); NYCCHR, Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements (Dec. 15, 2021) (Equitable Implementation). The EEOC has cautioned employers that “the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.” EEOC, What You Should Know § K.12; NYCCHR, Equitable Implementation at 3 (“[T]he NYCHRL protects not only employees who belong to organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also employees who have religious, ethical, or moral beliefs that are sincerely held with the strength of religious views.”). Under Title VII, protected religious beliefs are not dependent on whether they are “acceptable, logical, consistent, or comprehensible to others,” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981), but instead, include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1.
Although an employer may question the sincerity of an employee’s religious objection, the EEOC has reiterated its longstanding guidance that “employer[s] should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.” EEOC, Compliance Manual on Religious Discrimination §§ 12-IV(A)(2)-(3) (Jan. 15, 2021); EEOC, What You Should Know §§ K.12, L.2; see also NYCCHR, Equitable Implementation at 3 (“Employees . . . should not be required to submit supporting documentation unless their employer has an objective basis to question the sincerity of the religious basis for the employee’s inability to show proof of vaccination.”). The EEOC’s guidance regarding the presumed sincerity of an employee’s religious beliefs is premised on a reluctance of the courts to opine on what is religion, and what is not. EEOC, Compliance Manual § 12-I(A)(2) (citing, inter alia, Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013)). The Supreme Court has long held, in First Amendment religion-clause cases, that it’s inappropriate for a jury to determine “the truth or falsity of . . . religious beliefs or doctrines,” United States v. Ballard, 322 U.S. 78, 88 (1944), and that a person’s contention that a “belief is an essential part of [their] religious faith must be given great weight.” United States v. Seeger, 380 U.S. 163, 184 (1965).
Courts that have considered the issue of sincerity of religious beliefs in the context of labor and employment litigation have held that while employers may inquire into a worker’s religious beliefs when they are seeking an accommodation, they must do so in a limited fashion solely to ascertain the sincerity of the religious belief. For example, in Bushouse v. Local Union 2209, a federal district court ruled that an employee’s Title VII rights were not violated when his union required “independent corroboration” of alleged sincerely held religious beliefs that prohibited him from paying union dues. 164 F. Supp. 2d 1066, 1078 (N.D. Ind. 2001). The Bushouse court cautioned that its decision was limited to the facts of the case before it, and reasoned that the union was entitled to “a limited inquiry into the sincerity of [the plaintiff’s] claimed religious beliefs allows the union to ascertain whether an individual is motivated by sincere religious convictions as opposed to political or other convictions.” Id. at n. 18. Other courts have similarly endorsed narrow inquiries into religious sincerity because the employee’s burden “is not a heavy one” and courts “must avoid any test that might turn on the factfinder’s own idea of what a religion should resemble.” Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 482 (2d Cir. 1985) (internal quotations and citation omitted). Moreover, “courts confronted with Title VII religious discrimination issues often assume that plaintiffs have established [sincerity]” because courts are generally “mindful that Title VII’s capacious definition of religion leaves little room for a party to challenge the religious nature of an employee’s professed beliefs.” Together Employees v. Mass Gen. Brigham Inc., 2021 WL 5234394, at *17 (D. Mass. 2021) (internal quotations and citations omitted). Thus, employers should be cautious in questioning the sincerity of a worker’s religious-based vaccine exemption request.
When considering vaccine exemptions for medical accommodations under the ADA, the employee must have a “disability.” 42 U.S.C. § 12112(b)(5)(A). But not all medical conditions qualify as disabilities. Rather, the condition must “substantially limit” a “major life” activity. 42 U.S.C. §§ 12102(1)(A), 12102(2). Thus, an employer may inquire into the employee’s medical condition with somewhat more precision than it may with religious beliefs, as “the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.” EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC-CVG-2003-1 (Oct. 17, 2002).
Under City law, the NYCCHR has advised employers that they “must consider requests for reasonable accommodations from employees who need them because of disability, pregnancy, childbirth, lactation,” and has advised employees that they may be required to provide a doctor’s note as proof of the medical condition. See NYCCHR, Equitable Implementation. Similar to the guidance related to religious exemptions, New York City’s accommodation guidance also appears skeptical of medical exemptions by seeming to limit the categories of individuals entitled to medical exemptions. For example, the guidance does not mention the consideration of exemption requests based upon disabilities, pregnancy, childbirth, or lactation; it instead only mentions permanent medical exemptions because of severe allergic reactions, and temporary exemptions due to “of monoclonal antibody or convalescent plasma treatment of COVID,” recent “stem cell transplant, CAR Tcell therapy, or other therapy or treatment that would temporarily interfere with the worker’s ability to respond adequately to vaccination, or mount an immune response due to treatment,” or “[p]ericarditis or myocarditis.” N.Y.C. Law Dep’t, Guidance on Accommodations at 2. Here, too, employers should be cautious in evaluating medical exemption requests.
Good Faith Consideration of Reasonable Accommodation Requests
Contrary to widespread belief, courts have not determined that terminations of COVID-19 vaccine refusers seeking religious or medical exemption are lawful. Courts thus far have merely denied requests for injunctive relief, which is a remedy requiring special justification. See, e.g., Dr. A v. Hochul, 142 S.Ct. 552 (2021); Kane v. DeBlasio, 19 F.4th 152 (2d. Cir. 2021). And, courts have determined that healthcare employers may well face an undue hardship if accommodations were granted. See, e.g., Together Employees, 2021 WL 5234394; Bare v. Cardinal Health, Inc., 2022 WL 702593 (E.D. Tenn. Mar. 8, 2022). Thus, it would be a mistake for employers to rely on the headlines and ignore the legally required reasonable-accommodation process.
Moreover, employers must show good faith when confronted with an employee requesting a reasonable accommodation in the form of a vaccine exemption for religious or medical reasons. EEOC, Compliance Manual § 12-IV(A)(3) (collecting cases). “[T]he first step in providing a reasonable accommodation is to engage in a good-faith interactive process that assesses the needs of the [employee] and the reasonableness of the accommodation requested.” Hosking v. Memorial Sloan Kettering Cancer Ctr., 186 A.D.3d 58, 62-63 (1st Dep’t 2020) (citations omitted). In other words, employers must “engage[ ] in interactions with the employee revealing at least some deliberation upon the viability of the employee’s [accommodation] request.” Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 837 (2014). This inquiry also must be individualized for each employee seeking an accommodation. See, e.g., Wright v. New York State Dep’t of Corr., 831 F.3d 64, 77 (2d Cir. 2016). For their part, employees must cooperate with their employers in this process—employees who cause the interactive process to break down will forfeit their failure-to-accommodate claims. See Moxley v. New York, 2019 WL 5788440, at *12 (W.D.N.Y. Nov. 6, 2019). While an employer’s failure to engage in a good-faith interactive process is not an independent claim under Federal or State law, it may be used as evidence of discrimination, Sheng v. M&T Bank Corp., 848 F.3d 78, 87 (2d Cir. 2017) (citations omitted), and is an independent claim under City law (which requires a good faith “cooperative dialogue”). N.Y.C. Admin. Code § 8-107(28)(a); see also Hosking, 186 A.D.3d 58, 64.
Because employers must seriously consider their employees’ religious and medical accommodation requests on a case-by-case basis, more attention should be given to vaccine alternatives that will permit employees to do their jobs effectively without risking the safety of their coworkers or overburdening their employers. Employers must work together with their employees to consider what options are available to them, whether masking, regular testing, a schedule change, remote work, or other arrangement, given the nature of their employees’ work and their specific religious or medical needs. It is imperative that the legally mandated accommodation process not be cast aside for the sake of expediency or personal feelings regarding the necessity of vaccinations in the face of the pandemic.
Reprinted with permission from the May 26, 2022, issue date of the “New York Law Journal” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org
Garrett Kaske, an associate at Kessler Matura P.C., assisted in the preparation of this article.