(Reuters) – When coronavirus infections rise again, American companies that require vaccination face an awkward question that is rarely asked by an employer – what is an employee's religious belief?
Google's parents Alphabet Inc., Walmart Inc., and Tyson Foods Inc. are among the growing list of employers who require some or all of their staff to receive a COVID-19 vaccine.
But with every mandate comes exceptions. Employers must provide affordable housing for staff who cannot be vaccinated for medical reasons or refuse vaccination because of "sincere religious beliefs," according to the US Equal Employment Opportunity Commission.
"It's such a sensitive issue for both sides," said Erin McLaughlin, a lawyer at Buchanan Ingersoll & Rooney who advises large employers.
"This issue has come to the forefront as we see more and more mandatory vaccination policies," she said. She said there had been more regulatory guidance on disability exemptions than religious beliefs, which increased the challenge when companies drafted vaccine policies.
The widespread availability of coronavirus vaccines in the United States caused infections to drop dramatically from January to June, but is largely driven by the Delta variant, the current seven-day moving average of daily new cases is up 33.7%, according to the US Centers for Disease Control and Prevention.
The EEOC defines religion broadly to include moral and ethical beliefs and even includes resistance to receiving injections of certain chemicals, says Raeann Burgo, a lawyer at Fisher Phillips, a law firm that represents companies. precedents that serve as guidance.
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“As an employer, you can ask if an employee has a sincerely religious belief. It's just a tough investigation, says Brian Dean Abramson, author and specialist in vaccine laws.
He said that employers must be careful not to infringe on the privacy of workers or harass them, and companies must be aware that employees' religious views may change over time.
Alina Glukhovsky was fired from her job as a dermatologist at a salon in Chicago in 1990 after refusing to work at the Jom Kippur Jewish holiday. She sued.
She had not canceled for the holidays in previous years, and she testified that she was not very religious when she started working at the salon in 1982, but her faith developed after her father's death and the birth of a son.
The court ruled in her favor.
Ms. Burgo said companies should assume that employees seeking exemptions sincerely keep their faith. She said the bigger challenge may be to meet the exceptions that the employer may refuse if it results in an "unnecessary burden" on workplace safety and efficiency.
Brett Horvath cited religious beliefs when he refused a tetanus, diphtheria and pertussis vaccine in 2016 required by the City of Leander Fire Department in Texas where he worked as a driver and pump operator.
The department gave him a choice. Instead of getting vaccinated, he could wear a mask and test himself or switch to a code management job with hours that were less practical. He refused and was fired.
He sued and last year the Fifth Circuit of the American Court of Appeal confirmed the dismissal and found that the face mask requirement accommodated his religion while he was allowed to perform his job.
Lawyers said that vaccines can because regular tests and masks have become standard since the pandemic began and it can reduce disagreements about vaccine mandates.
But employees can also demand to work from home, which creates a challenge for reluctant employers to explain why mandatory attendance in person. is crucial after months of teleworking.
"There will be some employers who do it wrong before we go through the process to get pretty well established guidance on how to deal with this, especially with vaccines," says McLaughlin, the lawyer for large employers. Catalog