The other day, I received a call from a lawyer in distress. She had applied for a religious exemption to the covid shot mandate at her law firm and was now being questioned by the senior partners as to the sincerity of her religious beliefs. They asked questions such as whether she had ever received any previous vaccines, or taken any prescription or over-the-counter medications. She was astonished since, after working there for nearly a decade, everyone knew she was a devout Catholic. She had a religious icon hanging above her desk. She worked closely with the firm’s partners and was not shy about her religious beliefs. When she asked why they were asking these questions, they replied simply that “their counsel” advised them they were required to do so. Again, this is a LAW FIRM.
Putting aside that irony, why would any company’s counsel advise its client that they are required to ask a myriad of probing questions mounting a challenge to their employees’ sincerity of religious belief? After all, prior to 2021, it was an axiom of almost every HR training in the country that you should never question the sincerity or validity of your employee’s religious beliefs when considering a request for a religious accommodation. Unless there was clear evidence that the person was lying, the default was to believe the employee and grant the accommodation, unless to do so would subject the employer to an undue hardship or burden. So, for instance, when an employee requested to have Saturdays or Sundays off to observe the Sabbath, you grant the accommodation unless to do so would substantially disrupt your business operations (and even then, you’d better be sure to have all of that documented with supporting evidence before you denied an accommodation). The advice doled out in the HR training was never to subject the employee to a rigorous cross-examination in an effort to unearth some inconsistency in his replies to give you justification for ruling that his religious beliefs were insincere, and deny an accommodation on that basis. Such practice was unheard of. So what changed?
Please don’t say that it’s a matter of workplace safety, now that the religious accommodation requests are posing a threat to the health and safety of employees and customers. There is absolutely no credible scientific data to suggest that “unvaccinated” pose more of a risk of harm to others than the “vaccinated.” In fact, the evidence suggests quite the opposite. The most recent data from the UK Health Security Agency reflects a substantially higher rate of covid infection among vaccinated populations than unvaccinated populations in all but the under 30 age group (the least susceptible to serious complications).
But let’s assume for the sake of argument that the “unvaccinated” really do pose some degree of health risk to others in the workplace. That would go to the nature of the accommodation offered, or whether the accommodation could be offered based on the imposition of a burden on the employer. It has nothing at all to do with the sincerity of one’s beliefs. So why question sincerity of belief?
The answer is probably pretty simple. Employers know that they can’t prove someone with a religious exemption poses any kind of health threat at all in the workplace. Those employers who have adopted this position are, in my opinion, admitting that they have been placing individuals in harm’s way since March of 2020 (or whenever they resumed in-person work). After all, they told us that masks, hand washing, furious disinfecting, and social distancing were keeping us safe. Are they now saying that was all a lie? Or did the availability of covid shots suddenly render those heretofore effective means of preventing transmission useless? You see the problem with this (il)logic? It can’t withstand the scrutiny of a preschooler, much less a jury. So the only viable option left is to tear into one’s religious beliefs hell-bent on making the employee out to be a liar.
But that too carries risks, and I think they are just as substantial. Employers who adjudge themselves the arbiters of their employees’ hearts should tread very lightly. “For the Lord sees not as man sees: man looks on the outward appearance, but the Lord looks on the heart.” 1 Samuel 16:7. It seems to me that far too many HR managers are playing God these days. If an employer is going to deny an employee a religious exemption on the basis of sincerity of belief, it damn well better have a mountain of evidence to support that position. And the fact that someone has occasionally taken an over-the-counter pain reliever, or previous received a vaccine, won’t cut it. Even if someone objects to the covid shots based on the fact that they were tested and/or produced using aborted fetal cell lines, the fact that they have previously consumed a product that was also so tested proves nothing. In the vast majority of cases, the individual did not possess the requisite knowledge of this fact at the time they consumed the product. What’s more, there is a lot of misinformation swirling around about the use of aborted fetal cell lines in the testing and development of medications. The fact is that despite the allegations of many employers and the media about the development and testing of many of these drugs, the evidence says otherwise.
So what’s an employer to do? How about this: APPROVE THE RELIGIOUS EXEMPTION. I know it’s a radical idea, but it just might be one worth considering. After all, the potential liability the employer will suffer from denying religious accommodation requests is far greater than that incurred from approving them. I mean, think about it. An employee who falls ill from covid won’t even be able to prove that he/she contracted covid in the workplace, let alone prove that the employer is somehow responsible because it didn’t doubt the sincerity of an employee’s religious beliefs. The whole proposition would be laughable if it weren’t actually being adopted in corporate HR offices all across the country.
I know these are trying times, both for employers and employees. But trying times don’t demand that we disregard the law. And trying times certainly don’t demand that we toss aside our sincerely-held religious beliefs in favor of a paycheck. After all, in times like these, we need God more than ever.
Nothing in this blog post is intended to be construed as legal advice. The opinions are those of the author alone, and do not represent the opinions of any other person or organization.