- Joined
- Aug 8, 2021
Unfortunately, I looked it up and the EEOC is quite clear -- me dodging the conversation in any way gives them the OK to deny me the exemption at will.
Yes, they're clearly trying to figure out if my beliefs are "sincere." Which means they're actively trying to screw me out of my rights. So I'm going into this assuming a hostile environment.
This thread has me slogging through federal statutes and pulling cases like I'm a 3L again. Memories. My reading of Title VII and the EEOC CoVax specific guidelines regarding the interactive process isn't quite as pessimistic, at least not without having gotten to dig up some cases where that was a specific issue, but it doesn't really matter at the end of the day. I didn't put good odds on an attempt to dodge actually working permanently, unless your employer had zero confidence in whether their grounds for requesting more info was made "bona fide/in good faith" and "objectively based", should this situation end up in an EEOC complaint. I did hope hemming and hawing a bit might get them to show you in advance what it was that's on their minds (what basis underlay their potential doubt of your sincerity, or whether this was actually not so hostile and they just wanted to talk about possible accommodations).
Disclaimer I'm required to give -- We have no attorney-client relationship. This is legal information, not advice. You should definitely talk to an attorney licensed in your jurisdiction who's experienced in labor and employment law. (Sorry if the disclaimers in my lawsperg posts are off-putting, I had it hammered into me to be extra cautious about anything that could get a professional ethics board to dump on me as they were just then discovering this thing called "lawyers talking to people online and OMG how do we regulate that" and shit was extra uptight because there was zero consistency. Hooray for tech illiterates writing rules and literally medieval professional customs.)
After looking at the Barnes template letter, I'm guessing the fetal tissue bit will come up -- it seems to be the most popular point brought up in other exemption requests that are going into litigation, and the most consistently mentioned thing in templates and online discussions. This detail getting circulated in a lot of places online as a silver bullet to getting an exemption approved seems to be getting it red-flagged as likely to be insincere, looking over some guides written by employer-side law firms aimed at bosses. (Archive) It also could open the door to the employer countering with getting an "ethically non-controversial" vaccine later as an accommodation.
Venable wrote probably the clearest, most concise one of these guides I've come across, and it might be useful to you on both a tactical and a confidence-building level to get a peek at the other team's playbook. (Archive) For background, Venable's a pretty major BigLaw firm, and my impression of them from my (limited) past interaction with those guys is that they have their shit together, and aren't just coasting on inertia from being Hueg. The Fisher-Phillips one linked above the quote is more detailed and also good.
I'd also take a look at this one from Foley-Lardner if you can as well, as it spends time to address a couple points on where an employer can still oppose a sincere exemption request. (Archive) The safety issue in particular is the big one that always comes up in the context of any vaccine fight, especially in any workplace that involves interacting with medically-vulnerable populations.
Good luck, and I hope you can get a chance to sit down with a labor lawyer in your area. However this ultimately plays out, more knowledge and understanding tends to give more peace of mind and confidence, and that's always worth something when dealing with an inherently stressful situation.
After looking at the Barnes template letter, I'm guessing the fetal tissue bit will come up -- it seems to be the most popular point brought up in other exemption requests that are going into litigation, and the most consistently mentioned thing in templates and online discussions. This detail getting circulated in a lot of places online as a silver bullet to getting an exemption approved seems to be getting it red-flagged as likely to be insincere, looking over some guides written by employer-side law firms aimed at bosses. (Archive) It also could open the door to the employer countering with getting an "ethically non-controversial" vaccine later as an accommodation.
If the employee’s purported reason is based on their distrust of the vaccine or a philosophical news article they read online, that will likely not rise to the level of “sincerely held religious beliefs.” But don’t make this assumption right away. Instead, your questions regarding the employee’s stated belief for the exemption should be answered through an interactive process with the employee in which you may be able to – in some circumstances – request additional information or documentation from the employee.
Venable wrote probably the clearest, most concise one of these guides I've come across, and it might be useful to you on both a tactical and a confidence-building level to get a peek at the other team's playbook. (Archive) For background, Venable's a pretty major BigLaw firm, and my impression of them from my (limited) past interaction with those guys is that they have their shit together, and aren't just coasting on inertia from being Hueg. The Fisher-Phillips one linked above the quote is more detailed and also good.
I'd also take a look at this one from Foley-Lardner if you can as well, as it spends time to address a couple points on where an employer can still oppose a sincere exemption request. (Archive) The safety issue in particular is the big one that always comes up in the context of any vaccine fight, especially in any workplace that involves interacting with medically-vulnerable populations.
Employers are permitted to weigh the importance of workplace safety against the religious beliefs of an employee; Title VII does not require that the religious beliefs of an employee be prioritized above safety in the workplace. Case law is clear: “Safety considerations are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer’s business.” In Draper v. U.S. Pipe & Foundry Co., the court held that undue hardship can exist if the proposed accommodation would “either cause or increase safety risks or the risk of legal liability for the employer. … Title VII does not require employers to test their safety policies on employees to determine the minimum level of protection needed to avoid injury.”
Though limited, there is some legal precedent, particularly in the health care field, for weighing these considerations and electing to prioritize safety above an employee’s religious beliefs. In Robinson v. Children's Hospital Boston,the U.S. District Court for the District of Massachusetts determined that Children’s Hospital did not violate Title VII by terminating an employee who refused an influenza vaccination because of her religious beliefs. The court concluded that granting the employee’s requested accommodation not to receive the vaccine would have increased the risk of transmitting influenza to its already vulnerable patient population. This increased safety risk posed an undue hardship on the hospital and thus it was not obligated to accommodate the employee’s sincerely held religious belief.
Good luck, and I hope you can get a chance to sit down with a labor lawyer in your area. However this ultimately plays out, more knowledge and understanding tends to give more peace of mind and confidence, and that's always worth something when dealing with an inherently stressful situation.
*****
This last bit is more intended for anyone else reading all the ongoing conversations about religious exemptions who's feeling lost and worried and not sure where to start. The Miami-Herald wrote a good introductory article talking about religious exemptions for CoVax in the workplace aimed at normal people. (Archive) And here's a shortcut straight to the EEOC's guidelines specifically on exemptions and the Covid vaccines, which is a lot less painful than grinding through the entirety of Title VII. The EEOC also recorded a webinar about Covid and the workplace in 2020, complete with transcript, which might be useful to the more video-inclined people. Scroll down a bit HERE to find it.