Update on COVID-19 Vaccination Accommodations Under Title VII
Earlier this year, the United States Supreme Court in Biden v. Missouri, 595 U. S. ____ (2022) provided clarity for hospitals and healthcare facilities when it preliminarily upheld a vaccine mandate for health care workers who are employed by organizations receiving federal funding. However, while Biden v. Missouri resolved the threshold issue of whether or not the vaccine mandate for health care employers was lawful, it gave no guidance to healthcare employers on how to handle requests for vaccination exemptions under the Americans with Disabilities Act (“ADA”) or religious accommodation requests under Title VII. As a result, these debates are raging on in Human Resources groups and lower courts alike across the country.
The primary source of requests for exceptions to mandatory vaccination policies appear to be religious requests under Title VII. Title VII protects all aspects of religious observance, practice, and beliefs. This includes sincerely held religious beliefs that are new, uncommon, or not even part of an organized sect. EEOC guidance updated after the Biden v. Missouri opinion reinforced previous guidance that requests for religious exemptions need no “magic words” like Title VII or “accommodation”, and that employers should generally proceed under an assumption that a request for accommodation is based on a sincerely held religious belief unless the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief. Only then is an employer justified in making a limited fact intensive inquiry into the professed belief. An objective basis could be that an employee has previously complied with vaccination policies, or that the belief seems more to be a personal preference, like adhering to veganism without tying the practice to a religious belief. Importantly, employers should not require clergy attestations when evaluating requests.
Therefore, for healthcare employers operating under EEOC guidance and assuming the religious observance is sincerely held, the crux of the issues remaining for employers and lower courts are: (1) are there reasonable accommodations to the vaccination policy? And, (2) if so, do those reasonable accommodations pose an undue hardship to employers?
Unsurprisingly, employers and courts across the country are answering these tough questions differently. For example, a Massachusetts District Court held in Together Employees v. Mass General Brigham Inc., --- F.Supp.3d ---, 2021 WL 5234394 (D. Mass. 2021), that the risks that unvaccinated healthcare workers posed in a workplace represented an undue burden to employers under the religious tests of Title VII. In reaching these conclusions, the court made findings that the use of masks, even surgical masks, were not sufficient accommodations to the vaccination policy because they were less effective at preventing spread of Covid-19 than vaccination. This finding represents a departure from previous case law examining mandatory flu vaccination policies where some courts have found continuous masking to be an appropriate accommodation that did not cause an undue burden to employers. Despite this departure from previous case law, the district court’s opinion was recently upheld by the First Circuit. See Together Emps. v. Mass Gen. Brigham Inc., 32 F.4th 82 (1st Cir. 2022).
But courts in other jurisdictions have not been so bold, and settling suits, especially for religious accommodation denials under Title VII which lend themselves to class actions in these scenarios can be an expensive proposition. At the end of July, a large Illinois healthcare provider moved to settle a class action pending in the Northern District of Illinois, representing to pay over $10.5 million in fees and damages to a small class of 14 Plaintiffs and their attorneys. Doe 1, et al., v. NorthShore University HealthSystem, 1:21-cv-05683 ECF No. 107 (N.D. Ill). This is in addition to several former employees who may be receiving job reinstatement at NorthShore. In their original complaint, the Plaintiffs alleged religious discrimination, offering as evidence NorthShore’s improper request of clergy contact information, and the company’s non-uniform application of policy regarding exemptions and accommodations. As a result of diverging guidance, employers should continue to evaluate accommodations under Title VII seeking guidance from counsel as needed.
 Unlike accommodations under the ADA, the “undue hardship” standard for employers is lower under Title VII, and anything more than a de minimis hardship can qualify. Examples of undue hardship include safety concerns, or even costs like hiring additional temporary workers or additional overtime pay for other employees.