Am I Entitled to a Religious Exemption From My Employer’s Requirement That All of Its Employees in New Jersey Be Vaccinated Against COVID-19?
If you are an employee in the State of New Jersey 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 conduct of the employer’s business.
Further, in New Jersey, all workers in preschool to Grade 12 schools, all workers in certain health care facilities and high-risk congregate settings, all workers at state agencies, authorities, and colleges and universities, and all child care workers must be fully vaccinated against COVID-19 or be subject to COVID-19 testing at minimum one to two times per week, subject to the employers’ duty to provide reasonable accommodation to employees who require them because of, among other independent reasons, a sincerely held religious belief, practice, or observance.
Your employer in New Jersey does not have to provide you with a reasonable accommodation if it would impose an undue hardship on the conduct of the employer’s business. However, it is substantially more difficult under New Jersey 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 a reasonable accommodation would impose an undue hardship on the conduct of the employer’s business.
Your entitlement, if any, to a religious exemption from your employer’s requirement that all of its employees in New Jersey 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 Jersey laws. Let’s examine, 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 ADA”) 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 ADA’s undue hardship standard, which applies to requests for accommodations because of a disability.
Because there have been 1.2 million deaths in the United States related to COVID-19 and unvaccinated workers are more likely to get COVID-19 and to 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 to question whether you are sincere or to question whether your belief is genuinely religious in nature.
What is considered a religious belief under Title VII is 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 in 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 except 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.
New Jersey Law
New Jersey recently has enacted affirmative COVID-19 vaccine mandates that cover many employees. Specifically, in New Jersey:
- As of September 7, 2021, all workers in certain state and private health care facilities and high-risk congregate settings are required to be fully vaccinated or subject to testing.
- As of October 18, 2021, all workers in preschool through Grade 12 schools are required to be fully vaccinated or subject to testing.
- As of October 18, 2021, all workers at state agencies, authorities, and colleges and universities are required to be fully vaccinated or subject to testing.
- As of November 1, 2021, all workers in all child care facilities are required to be fully vaccinated or subject to ongoing weekly testing.
The New Jersey Division on Civil Rights (the “State Division on Civil Rights” or the “”NJ DCR”) has issued separate guidance on the duties of businesses under the New Jersey Law Against Discrimination (the “NJLAD”) and how those duties interact with New Jersey’s COVID-19 vaccine mandates. With exceptions not here relevant, the NJLAD governs all employers that have one or more employees in New Jersey.
If you, the employee, request an exception to New Jersey’s COVID-19 vaccine mandates because of, among other independent reasons, a sincerely held religious belief, practice, or observance, your employer must engage with you in an interactive process, or a good faith effort to assist you in seeking accommodations or assistance.
A reasonable accommodation may include allowing you to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
A reasonable accommodation may also include providing you with personal protective equipment that sufficiently mitigates your risk of COVID-19 transmission and exposure.
Your employer in New Jersey does not have to provide you with a reasonable accommodation if it would impose an undue hardship on the conduct of the employer’s business.
The standard for assessing undue hardship under the NJLAD differs from that under federal law when considering requests for reasonable accommodation. With respect to religion, the NJLAD defines undue hardship more narrowly than Title VII does.
In other words, it is substantially more difficult under New Jersey 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 a reasonable accommodation would impose an undue hardship on the conduct of the employer’s business.
In determining whether the religious accommodation constitutes an undue hardship, 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 for 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 NJLAD, an accommodation is considered to constitute an undue hardship if it will result in the inability of you, the employee who is seeking a religious accommodation, to perform the essential functions of the position in which you are employed.
If you, the employee, are seeking a reasonable accommodation because of your religious beliefs, practices, or observance, your employer may make a limited inquiry into the facts and circumstances supporting your request only if your employer has an objective basis for questioning either the religious nature or the sincerity of your particular belief, practice, or observance (prohibiting you from getting vaccinated against COVID-19).
Under the NJLAD, if there is no reasonable accommodation that your employer can provide that would mitigate the risk of COVID-19 transmission to its employees and customers, then your employer can enforce its policy of excluding unvaccinated employees from the physical workplace, even if you are unvaccinated because of a sincerely held religious belief. However, that does not mean that your employer can automatically terminate you if you cannot get vaccinated. The employer may be precluded by other laws, regulations, or policies.
If you are an executive or a professional in the State of New Jersey and you believe that you have been wrongfully terminated, that you’ve been denied 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 New Jersey Employment Lawyer David S. Rich at (201) 740-2828 today.
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