Am I Entitled To A Religious Exemption From My Employer’s Requirement That All Of Its Employees In Manhattan, NY Be Vaccinated Against COVID-19?
If you are an employee in Manhattan with a sincerely held religious belief, practice, or observance that conflicts with your employer’s requirement that all employees physically entering the workplace be fully vaccinated against COVID-19, you may or may not be entitled to a religious exemption from your employer’s COVID-19 vaccination requirement.
In some circumstances, federal law requires an employer to provide reasonable accommodations for employees who, because of a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19 unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
Further, specifically in Manhattan, most employers must require all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the employer’s duty to provide reasonable accommodation to employees who require them because of, among other independent reasons, a religious belief.
Your Manhattan employer does not have to provide you with a reasonable accommodation if it would cause a direct threat to other customers or employees of the business or impose an undue hardship on the business. However, it is substantially more difficult under New York City law than under federal law for your employer to avoid reasonably accommodating your religious belief (against getting vaccinated against COVID-19) on the ground that providing you with accommodation would impose an undue hardship on the business.
Your entitlement, if any, to a religious exemption from your employer’s requirement that all of its employees in Manhattan be vaccinated against COVID-19 is governed by two separate bodies of law: federal laws (that is, laws applying throughout the United States) and New York City (including Manhattan) laws. This article examines, in turn, each of these sources of authority.
Federal Law
The federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) and the Americans with Disabilities Act (“the A.D.A.”) and other equal employment opportunity considerations discussed in this article.
In some circumstances, Title VII requires an employer to provide reasonable accommodations for employees who, because of a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19 unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.
Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the A.D.A.’s undue hardship standard, which applies to requests for accommodations because of a disability.
Because COVID-19 has killed over 750,000 people in the U.S. and unvaccinated workers are more likely to get COVID-19 and transmit COVID-19 to others, employers may have a compelling argument that allowing unvaccinated workers into the workplace would be an undue hardship.
An employee who does not get vaccinated because of a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For instance, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework (that is, to work remotely), or lastly, accept a reassignment.
What Is A Sincerely Held Religious Belief?
For purposes of you, the employee, requesting a religious exception to your employer’s COVID-19 vaccination requirement, what, exactly, is a “sincerely held religious belief” held by you?
Under this guidance, employers may request additional information from you, the employee requesting a religious exception to your employer’s COVID-19 vaccination requirement, only in the rare cases where the employer has an objective basis for questioning whether you are sincere or to question whether your belief is genuinely religious in nature.
Cases that have been considered religious beliefs under Title VII are very broad and difficult for employers to challenge.
However, beliefs pertaining only to economic, social, personal preferences, or political ideals typically are not considered religious for purposes of Title VII.
If the objection raised by you, the employee, refers to vague constitutional rights or political views or natural law, then your employer may reasonably conclude that your objection is not based on religion and may be overruled.
Similarly, concerns expressed by you, the employee, about vaccine safety, toxicity, or efficacy, or about the trustworthiness of the media, the government, or the pharmaceutical industry are not religious beliefs and do not require your employer to accept you from your employer’s COVID-19 vaccination requirement.
If you, the employee, request a religious accommodation, and your employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of your particular belief, practice, or observance, your employer would be justified in requesting additional supporting information.
Factors that – either alone or in combination – might undermine the sincerity of an employee’s stated religious belief include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
Employers sometimes question the sincerity of a religious belief by examining whether the employee has acted contrary to the belief in the past.
For example, some workers have requested accommodations to COVID-19 vaccinations based on the alleged use of fetal cell lines in the initial testing of the drugs. In response, some employers are asking these workers to certify that they similarly do not take other common medicines that use fetal cell lines in testing, such as Tylenol, Motrin, and other common drugs.
Bona fide doubt that a religious belief is genuinely held might also exist if an employee who gets a flu shot every year now asserts that his religion prohibits piercing the skin for a COVID-19 vaccine.
Nonetheless, if the worker acting contrary to the religious belief is explainable, the inconsistency may not be enough for the employer to conclude that the worker’s religious belief is insincere.
Laws In The Borough of Manhattan
In New York City, including Manhattan, starting August 17, 2021, people 12 years of age and older – including both employees working at these locations and customers — are required to show proof that they have received at least one dose of a COVID-19 vaccine authorized for emergency use by the U.S. Department of Health and Human Services Food and Drug Administration (the “F.D.A.”) or the United Nations’ World Health Organization (the “WHO”) for indoor dining, indoor fitness, and indoor entertainment.
These requirements are imposed by Emergency Executive Order 225, also known as the “Key to N.Y.C.,” which New York City Mayor Bill de Blasio issued on September 16, 2021, and which the City began enforcing on September 13, 2021.
The New York City Commission on Human Rights (the “City Commission on Human Rights” or the “NYCCHR”) has issued separate guidance on the duties of businesses under the New York City Human Rights Law (the “City Human Rights Law” or the “NYCHRL”) and how those duties interact with the Key to N.Y.C. With exceptions not here relevant, the NYCHRL governs all employers that have four or more employees in New York City (including the borough of Manhattan).
The NYCCHR’s guidance states that when implementing the Key to N.Y.C., businesses must provide reasonable accommodation to employees who require them because of a disability, pregnancy, religious belief, or their status as victims of domestic violence, stalking, or sex offenses.
If you, the employee, request an exception to the vaccine requirement or additional time to provide your proof of vaccination because of, among other independent reasons, a religious belief, your employer must engage with you in a cooperative dialogue or a good-faith discussion to see if a reasonable accommodation of you is possible.
Reasonable accommodations can take many forms. For example, you, the employee, could work remotely, perform your job duties outside or isolated from other employees or customers, or take a leave of absence.
Your employer does not have to provide you with a reasonable accommodation if it would cause a direct threat to other customers or employees of the business or impose an undue hardship on the business.
The standard for assessing undue hardship under the NYCHRL differs from that under federal law when considering requests for reasonable accommodation. With respect to religion, the NYCHRL defines undue hardship considerably more narrowly than Title VII does.
In other words, it is substantially more difficult under the borough of NY Law than under federal law for your employer to avoid reasonably accommodating your religious belief (against getting vaccinated against COVID-19) on the ground that providing you with accommodation would impose an undue hardship on the business.
Specifically, with respect to religion, the NYCHRL defines an undue hardship as “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered include “(i) The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer; (ii) The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and (iii) For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.”
So, too, under the NYCHRL, religious accommodation is deemed to pose an undue hardship if it will result in the inability of you, the employee who is seeking religious accommodation, to perform the essential functions of your position.
If you, the employee, are seeking a reasonable accommodation because of your religious beliefs, your employer can request supporting documentation only if your employer has an objective basis to question the sincerity of the stated religious basis for your inability to show proof of vaccinations.
Under the NYCHRL, employees are only entitled to reasonable accommodations for needs related to their own disabilities, pregnancies, religious beliefs, or status as a victim of domestic violence, stalking, or sex offenses. Your employer does not have to provide reasonable accommodation to you if you fall outside of these categories and can fire you if you are unable to show proof of vaccinations.
If you are an executive or a professional in the Manhattan area and you believe that you have been wrongfully terminated, that you’ve been denied a salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call borough of Manhattan Employment Lawyer David S. Rich at (347) 941-0760 today.
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