Vaccination Policies

As COVID-19 vaccines have become available for nearly everyone who needs one and with the FDA announcing full approval of the Pfizer vaccine, [1] we have been informed that some church and ministry employers are considering implementing mandatory COVID-19 vaccination policies. COVID-19 vaccination policies are perceived as opportunities to get ministries back to “normal” and to get employees back to work. However, such a policy comes with risk and pitfalls for the employer. Specifically, if an employer decides to implement a mandatory vaccination policy, the employer must be aware that an employee may have qualified rights to refuse to comply.

This article is not intended to promote mandatory vaccination policies whatsoever. However, as a law firm that represents the interests of ministries, we realize that there are some diverging views on this subject within varying churches and ministries. We have been asked by a few ministries to provide our opinion on such a policy. Our goal is to make you aware of the risks associated with mandating a COVID-19 vaccine for your ministry’s employees.

RELIGIOUS EXEMPTION UNDER TITLE VII

Under Title VII, an employer must accommodate an employee’s sincerely held religious belief, practice, or observance. [4] This means that an employee who claims a religious objection from a COVID-19 mandate must be protected under Title VII. Once an employer receives notice of its employee’s sincerely held religious belief, practice, or observance, the employer must provide the employee a reasonable accommodation unless it would pose an undue hardship to the employer.  An undue hardship is “more than a de minimis cost” to the operation of the employer’s business (a lower threshold than the ADA, which is discussed below). Further, the EEOC recommends that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” [5] However, if there is an objective basis for questioning, the employer may make further inquiry of the employee. Failure to adhere to Title VII may result in the employer facing a federal lawsuit against the employer for damages and/or equitable relief.

A question is raised as to whether this rule applies to nonprofit religious employers. Title VII does not prohibit nonprofit religious employers from discriminating in its hiring practices against individuals who do not share the organizations religious beliefs. This rule generally applies for all employees. As to clergy and those recognized in law as “ministers”, an even greater exemption is provided to religious organizations. The ministerial exemption, which is established in constitutional law, will generally prevent governmental interference of the employer/minister relationship and prevent the application of Title VII entirely.

How does this apply to a religious employer seeking to enforce a COVID-19 vaccination mandate? Any person legally deemed a “minister” would not be entitled to the protection of Title VII because of the definitive ministerial exemption. Other employees who have a religious objection can request an accommodation from the religious employer. However, it does not appear that a religious employer will be obligated to accommodate an employee’s objection if that objection conflicts with religious beliefs of the religious employer. A religious employer that does not have a religious belief regarding a COVID-19 vaccine may be obligated to comply with Title VII’s accommodation provision. Ultimately, Churches and ministry employers should seek competent legal counsel before attempting to compel non-ministerial employees to get a COVID-19 vaccine as a condition of employment.

MEDICAL EXEMPTION UNDER THE ADA

The ministerial exemption exempts religious employers from the Americans with Disability Act (“ADA”) as to “ministers.” However, religious employers are otherwise subject to the ADA and are therefore obligated to provide non ministerial employees with an accommodation for medical reasons.[6]

Under the ADA, employers are allowed a safety-based qualification standard that may include a vaccination requirement.[7] However, employers must consider an employee’s recognized disability or medical reason for refusal to comply with this requirement. The health of some individuals may be uniquely compromised by a COVID-19 vaccine based on a protected disability requiring an employer to proceed with caution before imposing such a policy.   

If an employee refuses compliance to a mandatory vaccine and requests an accommodation, an employer may evaluate whether a reasonable accommodation will cause the employer undue hardship. “Undue hardship” is defined as “an action requiring significant difficulty or expense, when considered in light of the factors.” 29 CFR 1630.2(p). In examining if an employer discriminatorily denied a request for an accommodation, courts will look into factors such as: (1) the nature and cost of the accommodation, (2) the financial resources of the business, (3) the overall size of the business, and (4) the operation of the business, including the composition of the workplace. 29 C.F.R. 1630.2(r). If an employee refuses compliance and requests an accommodation, an employer can request documentation from the employee’s medical provider. Upon reviewing such documentation, the employer and employee can begin the interactive process of fashioning an accommodation that works for both parties. As mentioned previously, failure to engage in this process and make a good faith effort to provide an accommodation could result in the employer facing a federal lawsuit.

CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT (FEHA)

FEHA operates similarly to Title VII to require accommodations for employees. However, California Government Code § 12926(d) provides that a “religious association or corporation not organized for private profit” is not an “employer.” This essentially means that a church and ministry employer is exempt from FEHA.

Churches and ministries must be cautious when implementing mandatory vaccination policies for their employees. An employer who mandates vaccines could potentially be sued for damages by an employee injured by a vaccine.  congregants and ensure that they are respecting their congregant’s civil rights.  If you have any questions regarding your church or ministry policies, contact Tyler Law LLP. Our attorneys can help advise your church or ministry on the best practices.