Religious Accommodation Legal References

Religious Accommodation Legal References

The following are primary source references and quotes that clearly define the right for religious accommodations not just for government but also for private sector employees.

The U.S. Department of Health and Human Services states that all agencies are to use the same processes that are already in place for other routine vaccination exemptions.  The Treasury Chief of Staff states the bureau’s normal procedures are to be used for requesting reasonable accommodation to the COVID vaccination requirement.  The U.S. Equal Employment Opportunity Commission states that altering workplace policies can be a reasonable accommodation.  Please ensure that the process you establish accounts for equal protection under the law, not requiring a religious means test and not discriminating against employees based on their religious beliefs.  Religious beliefs are not disabilities.  They are handled under Title VII of the Civil Rights act.  By requiring proof of a religious exemption, you are violating the standard defined by EEOC that, ”the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.”  The rest of this notice provides important primary source references that support statements made and some are highlighted for emphasis. 

Title VII requires an employer, once on notice that a religious accommodation is needed, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. (U.S. Equal Employment Opportunity Commission, n.d.) 

Some employees have medical conditions or sincerely held religious beliefs that may prevent them from being vaccinated.  In this case, you will follow your bureau or office’s normal procedures for requesting a reasonable accommodation. (Didem Nisanci, Treasury Chief of Staff, n.d.) 

What does Title VII of the Civil Rights Act of 1964 prohibit? 

treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (disparate treatment);” 

denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – if an accommodation will not impose more than a de minimis cost or burden on business operations (U.S. Equal Employment Opportunity Commission, n.d.) 

Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. (U.S. Equal Employment Opportunity Commission, n.d.) 

Because agencies are directed to follow the regular accommodation process for religious and medical exemption, employees may not be forced to segregate from others. 

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference.” (U.S. Equal Employment Opportunity Commission, n.d.) 

Based on the U.S. Equal Employment Opportunity Commission, common accommodations include modifications to workplaces policies or practices, job reassignments etc.: 

“a Christian pharmacy employee needs to be excused from filling birth control prescriptions”
(U.S. Equal Employment Opportunity Commission, n.d.) 

“Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.” (U.S. Equal Employment Opportunity Commission, n.d.) 

May permitting an employee to work at home be a reasonable accommodation, even if the employer has no telework program? Yes. Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework… (U.S. Equal Employment Opportunity Commision, n.d.) 

“Muslim employee requesting an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requesting an exception allowing her to wear her bindi (religious forehead marking);” (U.S. Equal Employment Opportunity Commission, n.d.) 

The U.S. Office of Personnel Management lists common reasonable accommodations for federal employees.: 

…Examples of reasonable accommodations include providing interpreters, readers, or other personal assistance; modifying job duties; restructuring work sites; providing flexible work schedules or work sites (i.e. telework) and providing accessible technology or other workplace adaptive equipment. Telework provides employees additional flexibility by allowing them to work at a geographically convenient alternative worksite, such as home or a telecenter, on an average of at least one day per week. (U.S. Office of Personnel Management, n.d.) 

Regardless of whether organized religion approves; my sincerely held religious belief does not have to be justified by a particular denomination.  My protected religious beliefs can also seem illogical or unreasonable to others. 

“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. (U.S. Equal Employment Opportunity Commission, n.d.) 

an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.” (U.S. Equal Employment Opportunity Commission, n.d.) 

My beliefs about vaccines are sincerely held religious beliefs.  However, EEOC states that religious beliefs can also be non-theistic dealing including moral or ethical beliefs as to what is right and wrong which are held to the same strength that traditional religious views would be held. 

Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. (U.S. Equal Employment Opportunity Commission, n.d.) 

Throughout the history of our country our federal government has made provisions in the law for not requiring medical interventions for those who have sincerely held religious beliefs against them which is founded in our bill of rights. 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…“ (Bill of Rights – First Amendment, n.d.) 

Other agencies and the military are acknowledging the requirement to allow for a religious exception to vaccination. 

“Mandatory vaccination of Service members will be subject to any identified contraindications and any administrative or other exemptions established in Military Department policy.” (Secretary of Defense Memo, n.d.) 

“…The process for obtaining exemptions for all mandatory vaccinations is provided in AFI 48-110_IP, Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases, for medical exemptions, and DAFI 52-201, Religious Freedom in the Department of the Air Force, for religious accommodations…” (Secretary of the Air Force Frank Kendall, n.d.) 

The CDC, Centers for Disease Control and Prevention recognizes the right to refuse vaccines based on religious belief in its guidance for how to setup a workplace vaccination program. 

“Two types of exemptions can be implemented: 

Medical exemptions 

Some people may be at risk for an adverse reaction because of an allergy to one of the vaccine components or a medical condition. This is referred to as a medical exemption. 

Religious exemptions 

Some people may decline vaccination because of a religious belief. This is referred to as a religious exemption.”
(Centers for Disease Control and Prevention, n.d.) 

The U.S. Department of Health & Human Services recognizes the right to refuse vaccines for religious reasons.  It also states that the same exemption process that is used for all other routine vaccinations will also be used for COVID-19. 

IHS, NIH and the Commissioned Corps already require such personnel to receive the seasonal influenza vaccine and other routine vaccinations, with processes for medical and religious exemptions, and all agencies would implement this new COVID-19 vaccination requirement using the same processes that are already in place for these other vaccines. (U.S. Department of Health & Human Services, n.d.) 

The right to say no because of religious conviction is part of the right of informed consent and the right to say no to being forced to undergo medical procedures without coercion.  The U.S. Government put doctors to death for obeying their Gov’t in performing medical tests that ended in the death of some of their subjects because they did not seek voluntary consent from their subjects.  The Nuremberg Code was developed by American Judges in trials against doctors accused of medical testing atrocities.  First and foremost, the right of conscience is recognized through voluntary consent.  The doctors as defense tried to use the justification that it was the needs of the state to protect lives by subjecting people to tests and that their government ordered them to do so.  The U.S. prosecution held that there is no justification in killing five people in order to save the lives of five hundred.  Informed consent at its root is right of conscience of the individual to make decisions about their health without force, duress, constraint, coercion etc. 

“The Nuremberg Code is the most important document in the history of the ethics of medical research.  The Code was formulated 50 years ago, in August 1947, in Nuremberg, Germany, by American judges sitting in judgment of Nazi doctors accused of conducting murderous and torturous human experiments in the concentration camps (the so-called Doctors’ Trial).” (The New England Journal of Medicine, n.d.) 

“The voluntary consent of the human subject is absolutely essential. 

This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion” (The New England Journal of Medicine, n.d.) 

“…researchers must refuse to conduct experiments on human beings when ordered by the state in order “to save lives,” because in such cases subjects would not be volunteers. He declared that “[t]here is no justification in killing five people in order to save the lives of five hundred” and that “no state or politician under the sun could force [him] to perform a medical experiment which [he] thought was morally unjustified.” (The New England Journal of Medicine, n.d.) 

Medical Providers providing Medicare are not forced under federal law to provide medical services that they object to on moral or religious grounds. 

“(j)(3)(B) Conscience protection
Subparagraph (A) shall not be construed as requiring a Medicare+Choice plan to provide, reimburse for, or provide coverage of a counseling or referral service if the Medicare+Choice organization offering the plan-
(i) objects to the provision of such service on moral or religious grounds;” (42 USC 1395w-22: Benefits and beneficiary protections, n.d.) 

Organizations do not loose funding from the federal government for refusing to take part in programs or activities to which they have religious or moral objection. 

“(d)(1) shall not be required, as a condition of receiving such assistance-
(B) to endorse, utilize, make a referral to, become integrated with, or otherwise participate in any program or activity to which the organization has a religious or moral objection;” (22 USC 7631: Assistance to combat HIV/AIDS, n.d.) 

Individuals are not forced under federal law to receive medical screening or treatment if they have religious objection. 

“(ss)(3)(A)(i) In administering this subsection and section 1395i–5 of this title, the Secretary shall not require any patient of a religious nonmedical health care institution to undergo medical screening, examination, diagnosis, prognosis, or treatment or to accept any other medical health care service, if such patient (or legal representative of the patient) objects thereto on religious grounds.” (42 USC 1395x: Definitions, n.d.)

“(B)(i) In administering this subsection and section 1395i–5 of this title, the Secretary shall not subject a religious nonmedical health care institution or its personnel to any medical supervision, regulation, or control, insofar as such supervision, regulation, or control would be contrary to the religious beliefs observed by the institution or such personnel.” (42 USC 1395x: Definitions, n.d.) 

Immigrants to our country have provisions in the law from being forced to take vaccinations that are contrary to their religious beliefs or moral convictions. (U.S. Citizenship and Immigration Services, n.d.) 

“8 USC 1182: Inadmissible aliens
(g)(2)(C) under such circumstances as the Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien’s religious beliefs or moral convictions;” (8 USC 1182: Inadmissible aliens, n.d.) 

Regarding distribution of pediatric vaccines, federal law requires providers to abide by state religious and other exemptions. 

“(c)(2)(B)(ii) The provider will provide pediatric vaccines in compliance with applicable State law, including any such law relating to any religious or other exemption.”
(42 USC 1396s: Program for distribution of pediatric vaccines, n.d.) 

As a resident of West Virginia, and the location of my place of duty, the state constitution clearly recognizes my right not to be forced to take a vaccine that goes against my religious opinions or belief. 

“…nor shall any man be enforced, restrained, molested or burdened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief…” (WV Code 3-15. Religious freedom guaranteed., n.d.) 

According to the President’s Press Secretary, federal employees who refuse to vaccinate could be fired for not complying with this presidential order. 

“MS. PSAKI:  …But certainly, vaccination is required for contractors and employees, and the President was pretty clear about that yesterday. 

Q    And so, ultimately, people could get fired? 

    1. PSAKI:  Correct.”(Press Briefing by Press Secretary Jen Psaki, September 10, 2021, n.d.)

Based on the official position of the President through his Press Secretary, continued employment of federal employees is based on their compliance with the vaccination order.  No federal employee should have to prove their sincerely held religious belief based on some test to validate or prove the sincerity of their claim. 

“…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. (U.S. Constitution Article 6 Clause 3, n.d.) 

The Speaker of the House states officially that they don’t have the authority to enforce a vaccination mandate against the Legislative branch staff or even the American people. 

Question: “…Why not consider something like requiring that everyone be fully vaccinated?” 

Answer: “… So – so here is the thing.  We are – we cannot require someone to be vaccinated.  That’s just not what we can do.  It is a matter of privacy to know who is or who isn’t.  I can’t go to the Capitol Physician and say, ‘Give me the names of people who aren’t vaccinated, so I can go encourage them or make it known to others to encourage them to be vaccinated.’  So we can’t – we can’t do that… So, if we could, but we can’t require vaccinations for the Members, much less for the American people…” (Transcript of Pelosi Weekly Press Conference, 2021) 

All employees have equal protection under the law and shall not be discriminated against based on religion.  Federal employees will be treated differently based on what branch of government and what executive agency they work for.  It is a violation of equal protection of the law if federal agencies treat their employees differently for the same sincerely held religious belief all because they are in a different executive agency or federal branch of government.  A federal employee should not lawfully have to choose between their sincerely held religious beliefs vs remaining positively employed by the federal government. 

“…nor deny to any person within its jurisdiction the equal protection of the laws.”
(U.S. Constitution 14th Amendment Section 1, n.d.) 

The United States government does not discriminate in employment on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, political affiliation, sexual orientation, marital status, disability, genetic information, age, membership in an employee organization, retaliation, parental status, military service, or other non-merit factor.” (U.S. Department of Labor, 2021) 

Title VII prohibits: …treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (disparate treatment); (U.S. Equal Employment Opportunity Commission, n.d.) 

  

 

References 

22 USC 7631: Assistance to combat HIV/AIDS. (n.d.). Retrieved from https://uscode.house.gov/view.xhtml?req=(title:22%20section:7631%20edition:prelim)%20OR%20(granuleid:USC-prelim-title22-section7631)&f=treesort&num=0&edition=prelim 

42 USC 1395w-22: Benefits and beneficiary protections. (n.d.). Retrieved from https://uscode.house.gov/view.xhtml?req=(title:42%20section:1395w-22%20edition:prelim) 

42 USC 1395x: Definitions. (n.d.). Retrieved from https://uscode.house.gov/view.xhtml?req=(title:42%20section:1395x%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section1395x)&f=treesort&edition=prelim&num=0&jumpTo=true 

42 USC 1396s: Program for distribution of pediatric vaccines. (n.d.). Retrieved from https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396s&num=0&edition=prelim 

8 USC 1182: Inadmissible aliens. (n.d.). 8 USC 1182: Inadmissible aliens. Retrieved from https://uscode.house.gov/view.xhtml?edition=prelim&req=granuleid%3AUSC-prelim-title8-section1182&num=0 

Bill of Rights – First Amendment. (n.d.). Retrieved from https://constitution.congress.gov/constitution/amendment-1/#:~:text=Congress%20shall%20make%20no%20law,for%20a%20redress%20of%20grievances 

Centers for Disease Control and Prevention. (n.d.). Workplace Vaccination Program. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html 

Didem Nisanci, Treasury Chief of Staff. (n.d.). Retrieved from https://irssource.web.irs.gov/Lists/Commissioner%20Corner%20News/DispItemForm.aspx?ID=259 

President Biden Jr. (2021, September 9). Retrieved from https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/ 

Press Briefing by Press Secretary Jen Psaki, September 10, 2021. (n.d.). Retrieved from https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/10/press-briefing-by-press-secretary-jen-psaki-september-10-2021/ 

Secretary of Defense Memo. (n.d.). Retrieved from https://media.defense.gov/2021/Aug/25/2002838826/-1/-1/0/MEMORANDUM-FOR-MANDATORY-CORONAVIRUS-DISEASE-2019-VACCINATION-OF-DEPARTMENT-OF-DEFENSE-SERVICE-MEMBERS.PDF 

Secretary of the Air Force Frank Kendall. (n.d.). Retrieved from https://www.spaceforce.mil/News/Article/2765015/daf-announces-mandatory-covid-vaccine-implementation-guidelines-for-airmen-guar/ 

The New England Journal of Medicine. (n.d.). Fifty Years Later: The Significance of the Nuremberg Code. Retrieved from https://www.nejm.org/doi/full/10.1056/nejm199711133372006 

Transcript of Pelosi Weekly Press Conference. (2021, April 29). Retrieved from https://www.speaker.gov/newsroom/42921-2 

U.S. Citizenship and Immigration Services. (n.d.). Retrieved from https://www.uscis.gov/tools/designated-civil-surgeons/vaccination-requirements 

U.S. Constitution 14th Amendment Section 1. (n.d.). Retrieved from https://constitution.congress.gov/constitution/amendment-14/ 

U.S. Constitution Article 6 Clause 3. (n.d.). Retrieved from https://constitution.congress.gov/browse/article-6/ 

U.S. Department of Health & Human Services. (n.d.). Secretary Becerra to Require COVID-19 Vaccinations for HHS Health Care Workforce. Retrieved from https://www.hhs.gov/about/news/2021/08/12/secretary-becerra-to-require-covid-19-vaccinations-for-hhs-health-care-workforce.html 

U.S. Department of Labor. (2021). Equal Employment Opportunity. Retrieved from https://www.dol.gov/agencies/sol/careers/equal-employment-opportunity 

U.S. Equal Employment Opportunity Commision. (n.d.). Work at Home/Telework as a Reasonable Accommodation. Retrieved from https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation 

U.S. Equal Employment Opportunity Commission. (n.d.). Questions and Answers: Religious Discrimination in the Workplace. Retrieved from https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace 

U.S. Equal Employment Opportunity Commission. (n.d.). Questions and Answers: Religious Discrimination in the Workplace. Retrieved from https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace 

U.S. Equal Employment Opportunity Commission. (n.d.). Religious Discrimination & Reasonable Accommodation. Retrieved from https://www.eeoc.gov/religious-discrimination 

U.S. Equal Employment Opportunity Commission. (n.d.). SECTION 12: RELIGIOUS DISCRIMINATION. Retrieved from https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination 

U.S. Equal Employment Opportunity Commission. (n.d.). What You Should Know: Workplace Religious Accommodation. Retrieved from https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation 

U.S. Office of Personnel Management. (n.d.). Reasonable Accommodations. Retrieved from https://www.opm.gov/policy-data-oversight/disability-employment/reasonable-accommodations 

WV Code 3-15. Religious freedom guaranteed. (n.d.). Retrieved from http://www.wvlegislature.gov/WVCODE/WV_CON.cfm