The honor system has developed into a key element of how well societies — whether local, statewide or national — are functioning under the strain of the COVID-19 pandemic.
Case in point: the religious beliefs exemption from vaccination mandates.
More businesses and nonprofits with at least 100 employees are following the Biden administration’s recommendation to require workers be fully vaccinated as a condition of employment.
In response, more unvaccinated individuals are requesting an exemption from the mandate to avoid losing their job.
Americans have been able to request exemptions for certain educational, employment and other societal functions since Congress passed the Civil Rights Act of 1964.
A key element of the law is Title VII, which provides workers with protections from discrimination when they express and observe sincere religious beliefs. Title VII covers businesses with at least 15 employees.
However, securing the exemption, in most instances, doesn’t allow the recipient to avoid masking, personal protection equipment and other social distancing requirements placed by their employer, a public venue, or by city, county and state government officials.
That’s because Title VII gives employers some wiggle room when it comes to how they define what “an undue hardship” represents when it comes to allowing or turning down a religious beliefs exemption.
“Undue hardship” under Title VII is defined as “more than minimal cost or burden on the employer” by the U.S. Equal Employment Opportunity Commission.
According to national employment law firm Bradley, which has a Charlotte office, the EEOC factors to consider in evaluating an undue burden include:
Whether the accommodation is too costly;
Whether it would decrease workplace efficiency;
Whether the accommodation infringes on the rights of other employees;
Whether it requires other employees to do more hazardous or burdensome work;
Whether the accommodation conflicts with another law; and
Whether it compromises workplace safety.
“Applying a religious exemption to vaccine mandates is not an easy task, but you can employ some reasonable inquiry and enforcement mechanisms to balance the multiple competing interests involved,” the law firm said.
North Carolina state law doesn’t specifically address religious exemptions as it relates to employment.
The overarching addressing of religious exemptions in North Carolina state law comes in General Statute 130A-157, which reads:
“If the bona fide religious beliefs of an adult or the parent, guardian or person in loco parentis of a child are contrary to the immunization requirements contained in this chapter, the adult or the child shall be exempt from the requirements.
“Upon submission of a written statement of the bona fide religious beliefs and opposition to the immunization requirements, the person may attend the college, university, school or facility without presenting a certificate of immunization.”
The N.C. Department of Health and Human Services cited the General Statute when asked about how it is addressing the issue.
The N.C. Division of Employment Security said it “will review whether the person filing for unemployment benefits was compliant with their employer’s policy.”
“Under Title VII of the Civil Rights Act, an employer’s policy should include an exemption based on a sincerely held religious belief, practice or observance of the employee.”
The employment law firm of Hall Estill, based in Denver, said employers with more than 100 workers “will still be required to explore whether a reasonable accommodation exists for those employees who seek refuge from the vaccination mandate because of a sincerely held religious belief, or a disability-based reason.”
“Absent falling into one of those two categories, however, unvaccinated covered employees will have no choice but to obtain full vaccination or, if they are private sector employees, undergo weekly testing if they wish to keep their current job.”
Health-care systems’ response
Novant Health Inc. has been at the forefront of the local employee vaccination requirement since it announced Sept. 27 that 175 employees had been fired for failing to comply with its COVID-19 vaccination mandate.
Novant said that 99% of its more than 35,000 employees are in compliance. The system has about 8,145 employees in Forsyth County.
The employees who were fired worked across 15 hospitals, 800 clinics and hundreds of outpatient facilities. It has declined to provide a breakdown by market.
The Novant action at the time of the firings proved noteworthy enough to gain national media attention and a top trending item on Twitter.
Novant said some employees were approved for a religious exemption from the vaccination mandate. It said in a statement that “as a matter of internal policy, we are not releasing numbers related to medical and religious exemptions.”
“The exemption committees were comprised of a multidisciplinary team who carefully reviewed every exemption request on an individual basis. Each exemption was assessed based on the information provided by the team member in accordance with applicable law.”
Novant emphasized that employees exempted for either medical or religious reasons are required to undergo weekly COVID-19 testing, wear N95 respirator masks or other appropriate PPE and eye-wear protection while working on its premises.
“These added safety measures are in place to ensure patient and team member safety and preserve staffing levels,” Novant said.
Cone Health said last week that its religious exemption policy requires the reviews of all employee requests for religious accommodations.
The review is designed “to determine if an employee’s sincerely held religious beliefs conflict with our mandatory vaccination policy.” Cone has about 13,000 employees systemwide.
“Reasonable accommodations to the policy will be provided so long as they do not pose an undue hardship.”
Cone said it is giving unvaccinated employees most of October to get their second dose of the Pfizer or Moderna COVID-19 vaccines, or the one-dose Johnson & Johnson vaccine.
Atrium Health Wake Forest Baptist did not respond when asked about its religious exemption policies.
Baptist and parent company Atrium have set an Oct. 31 deadline for employee compliance. Baptist has more than 19,000 employees, including about 14,000 in Forsyth.
Baptist mentioned the highly contagious nature of the delta variant as a primary factor in mandating employees being fully vaccinated.
The N.C. Healthcare Association said in a statement that it “does not have a policy or statement about what qualifies as a religious exemption for COVID-19 vaccine.”
“There are federal and state standards for accommodations that could be operationalized slightly differently among the health systems or hospitals.”
The honor system comes into play foremost because there is no cut-and-dried definition of what qualifies as a sincere religious belief — even for the EEOC.
According to the EEOC’s website, Title VII “protects all aspects of religious observance and practice, as well as belief and defines religion very broadly for purposes of determining what the law covers.”
“For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. “
An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few — or no — other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.
“Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held.
“Rather, religion typically concerns ‘ultimate ideas’ about ‘life, purpose and death.’ Social, political or economic philosophies, as well as mere personal preferences, are not ‘religious’ beliefs protected by Title VII.”
According to a Sept. 16 blog post titled “You just gotta believe” by Bradley, the EEOC allows employers to consider four elements of a sincere religious beliefs claim:
Whether the employee has acted in a way that is inconsistent with the claimed belief;
Whether the employee is seeking a benefit or an exception that is likely to be sought for nonreligious reasons;
Whether the timing of the request is questionable; and
Whether the employee has other reasons to believe that the employee is seeking the benefit for secular reasons.
One example of an employer testing the sincere religious beliefs of employees is Conway Regional Health System of Conway, Ark., as reported by NPR.
At least 45 Conway employees cited as part of their exemption requests that “vaccines that used fetal cells in research, testing or production should not be put in their bodies.”
According to NPR, the Johnson & Johnson, Moderna and Pfizer vaccines do not contain any fetal cells.
Those Conway employees were required to attest that they do not use 28 commonly used medicines that also used fetal cells in their research, testing or development, such as aspirin, ibuprofen, Motrin and Tylenol, along with cholesterol drugs Lipitor and simvastatin, allergy and cold medicines such as Benadryl, Claritin and Sudafed, and even Ex-Lax, Maalox and Tums.
Chelsea Smith, a labor and employment attorney with Hall Estill, said she has been telling clients that handling religious exemption requests can be “a slippery slope, and that employers need to investigate the request thoroughly before granting it.”
“No denomination has opposed the vaccine, but an individual could still say it violates their religion and it meets the standard,” Smith said. “On religious issues, typically, most have assumed it was a sincerely held belief. With this vaccine in particular, the question is whether it’s truly sincere, or is it politically motivated, or because of fear of the vaccine. This is hard to prove.
“I think it is important to look and see if the individual has previously opposed vaccines, such as the flu vaccine.”