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Kayla 00:02

It’s so subjective and that’s part of the challenge. It’s such a thorny area, you know, the idea of questioning someone’s belief. And employees can share religion but have different religious practices, or they can vary in their degree of adherence to a certain religion. It’s… it’s just all very subjective.

Susan 00:22

Welcome to The JoyPowered® Workspace Podcast, where we help HR and business leaders embrace joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. With me is my co-host and dear friend, JoDee Curtis, owner of Purple Ink, a large HR consulting firm.

Susan 00:41

Our topic today is workplace religious accommodations in the age of COVID-19. JoDee, I think every business leader and HR professional today are navigating their way through the impacts of COVID-19 on their organizations. One area we’ve gotten a lot of questions about is the religious accommodation as it relates to not getting vaccinated. What counts as a religious exemption? What doesn’t count? And how should we handle requests for religious exemptions that keep coming in? To answer these questions and more, we’ve invited an expert to share her thoughts today. We’ve actually invited someone who’s been with us before: Kayla Ernst. She’s back here for the second time on The JoyPowered® Workspace Podcast. Kayla is an associate at Ice Miller in their labor and employment group. Kayla’s practice includes both employment law litigation and counseling. She represents employers in state and federal courts and before agencies such as the EEOC or the National Labor Relations Board. Kayla also advises employers on a broad range of issues including leave and accommodation issues, handling employee complaints, and terminations, and she assists employers in the drafting and implementation of employment policies. Kayla received her Juris Doctor from The Ohio State University Moritz College of Law, and prior to law school, received her Bachelor of Arts degree from Kenyon College. Kayla, welcome back.

Kayla 02:10

Thanks for having me again.

Susan 02:12

Kayla, what are an employer’s obligations when it comes to religious accommodation in the workplace?

Kayla 02:18

The short version is that when an employee or applicant asks that a work requirement be changed in some manner due to a religious belief, the employer may have to find an accommodation for that employee. And that obligation comes from Title VII of the Civil Rights Act, which covers most employers and prohibits employment discrimination based on religion. And kind of the more technical standard there is that the law requires employers to provide reasonable accommodations to employees whose sincerely held religious belief or practice conflicts with a work requirement, unless providing the accommodation would create an undue hardship for the employer.

JoDee 02:56

So you just said that word “sincerely held religious belief or practice.” What is… what does that mean exactly? How do we know that they have a sincerely held religious belief or they’re just trying to get an excuse?

Kayla 03:13

That’s a tricky question, and one that a lot of employers have been dealing with now with religious exemption requests to vaccine requirements. So the answer is that religion under Title VII is defined very broadly. It includes traditional organized religion like Christianity, Islam, Judaism, and it also includes non-traditional beliefs. So it includes theistic beliefs, so those that believe in God, and it also includes nontheistic beliefs, which are moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views. So that’s one part of it, that it’s defined pretty broadly. And then the other side of it is that social, political, economic philosophies, or personal views are not considered religious beliefs under Title VII, and the EEOC kind of on that point, their position is that because the definition of religion is so broad, employers should ordinarily assume that a request for a religious accommodation is based in a sincerely held belief, but if they have an objective basis for questioning it, they can ask for more information.

Susan 04:20

That is so interesting. I think about issues that come into play in the Catholic Church, because I’m Catholic, and I think about when the Pope comes out and says something, and then there’s parts of the Catholic Church here in the United States that disagrees, like different bishops or whatever… man, I wonder if that puts the employer in a really difficult position. You know, the example of the Pope saying everybody needs to get a vaccine, and yet there’s, you know, bishops out across the United States, some that feel like they should not, based on the fact how the COVID-19 vaccine was initially generated or started.

Kayla 04:54

Right. It’s so subjective and that’s part of the challenge. It’s such a thorny area, you know, the idea of questioning someone’s belief, and employees can share religion but have different religious practices, or they can vary in their degree of adherence to a certain religion. It’s just all very subjective.

Susan 05:11

Yeah. Which makes it very hard on that business leader and that HR person. Can you give us some examples of the types of religious accommodations that employees might seek?

Kayla 05:21

Sure. So schedule changes might be one example. So there’s some case law around… one common request is Seventh Day Adventists, who ask to be excused from Saturday work because of their observance of the Sabbath. Another example might be a request from breaks from work to engage in prayer, or seeking an exception to the company’s dress code policy due to how an employee dresses based on their religion. And of course, the most contemporary example would be seeking an exemption from an employer’s mandatory vaccine policy.

JoDee 05:54

Right.

Susan 05:55

That’s what we keep hearing about right now.

JoDee 05:57

Yeah. So on that one specifically, Kayla, how should employers be addressing these requests? For employers who are mandating the vaccine or are part of a mandate that the government is putting on them, how do employers address these?

Kayla 06:16

The EEOC just issued guidance on this last month, on how employers should address these types of requests, so provides employers with a little bit of some guidance there. And the first thing that the agency says is that employees don’t need to use magic words such as “Title VII” or “religious accommodation” to make a request. They do need to notify their employer that there’s some conflict between their religious belief and the vaccination requirement. And EEOC also encourages that as a best practice, an employer should provide employees with information on who to contact and the procedures used to request an accommodation. And as far as procedures go, what some employers will do is have a standard form that employees can use to fill out when they have a religious accommodation request. And in fact, the EEOC publishes its own standard form that the agency uses for its employees on its website. And just looking at their form, essentially, ask the employee to identify what policy there is that conflicts with the employee’s religious belief, and ask the employee to describe the nature of their belief, and then to state the accommodation that they’re requesting. So that’s kind of an example of how employers are handling it on the front end. And then once the request has been made, at that point, the employer is analyzing whether it has an obligation to provide an accommodation. And that’s where you’re getting into the sticky questions of… Is there really a sincerely held religious belief that conflicts with the policy? And then the next question is whether a reasonable accommodation can be made that wouldn’t cause an undue hardship. So for mandatory vaccine policies, that might be exempting the employee from getting a vaccine, but requiring other things like masking and testing, social distancing. And then again, another layer to this is that if the accommodation would cause an undue hardship, the employer doesn’t have to provide it. And under Title VII, undue hardship is defined as having more than a minimal cost or burden on the employer, which is really not that high of a standard.

JoDee 08:21

Yeah.

Susan 08:22

So let’s say that you are the business leader or the HR person, and you have looked at their request, and you feel like you’ve looked to see if an accommodation was necessary or not. But at the bottom of your thinking is, you just don’t think it really meets the threshold in your mind that it’s really sincerely held. What should you do? Like, how do you react to that? What should the employer do in that circumstance?

Kayla 08:49

Right. It’s, again, a thorny issue because of how subjective these beliefs are. And that’s kind of the challenge employers are having as they’re getting this influx of religious accommodation requests when, you know, they… they know that employees maybe get other vaccinations, so they’re surprised to see that they have an objection to this vaccination. And so it’s really… it’s really trying to figure out whether there’s, you know, there could be a sincerely held belief there. And on this point, the EEOC’s position is that, again, because the definition is so broad, employers should ordinarily assume that it is a sincerely held belief, but again, they can question that belief and ask for additional information. And the EEOC guidance talks about how an employee’s sincerity and holding a belief is largely a matter of individual credibility, and then it goes on… factors that might undermine an employee’s credibility. And those factors are whether the employee has acted in a manner inconsistent with their professed belief, whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons, and whether the timing of the request renders it suspect – so, if the day before, the employee objected to the vaccine based on personal views, and then two days later, they submit a religious accommodation request, so there’s reasons to question the credibility. The question is, if that’s the point that you’re challenging a request for an accommodation, are you risking some type of litigation claim on an issue that’s probably not… it’s just not black and white. So.

Susan 10:26

Yes, I can see the sticky wicket there.

Kayla 10:28

Yeah.

JoDee 10:29

Yeah. I’ve… all kinds of examples of people doing things like, you know, going to their church leaders or priests or pastors and asking for a written letter or to say, like, “this person goes to church every week.” And then I’ve heard of people who work at a Catholic hospital who are mandating it, and then some of the employees say, “I need a religious exemption. I’m Catholic.” Right? It’s like, [laughs] wait a minute here. There’s just so many… so many disconnects. I’ve also heard so many, lots of people say, like, “we never knew our people were so religious before.”

Susan 11:08

[Laughs] “They’ve kept it really quiet until now.”

JoDee 11:11

[Laughs]

Kayla 11:11

And kind of another layer, too, is that an individual’s belief or the degree of their adherence to any belief can change over time…

JoDee 11:19

Right.

Kayla 11:19

…by any given day. It’s…

Susan 11:21

Fair point.

Kayla 11:22

It’s not, you know, the same thing as maybe a disability request where there’s a diagnosis and a clear medical issue. It’s, again, very subjective and can change.

Susan 11:33

That makes sense. People can be moved religiously and be unmoved. Right. That’s a great point.

JoDee 11:37

Right. So let’s take your comment about the disability and take that a little bit further. So if employees seek a medical exemption from a mandatory vaccine policy as an accommodation for a disability, is there a difference between how the employer might handle the medical exemption versus the religious exemption request?

Kayla 12:02

There are differences. It’s a similar analysis. So in both scenarios, an employee seeking reasonable accommodation that might be for disability under the Americans with Disabilities Act, or it might be due to their religion under Title VII. In both cases, employers have to consider where there’s… if there’s a reasonable accommodation they can provide absent undue hardship. And probably the biggest difference there is that undue hardship is defined differently under the ADA and Title VII. And so under the ADA, undue hardship means significant difficulty or expense, and it focuses on the resources and circumstances of particular employer and how that relates to the cost or difficulty of providing a medical accommodation. So that’s a pretty high burden for employers to meet. On the other hand, as we’ve talked about with Title VII, employers don’t have to provide if it would cause an undue hardship, and that’s defined as something that would require to incur more than a de minimis cost or burden. So even slight costs or burdens may qualify as an undue hardship under the Title VII standard. So we’re seeing some employers who, instead of getting into the fight about sincerely held religious beliefs, instead, if they think there’s a basis to deny it based on workplace safety concerns or other hardship issues, using an undue hardship part of the analysis, which might create a basis for them to not provide the accommodation requested.

Susan 13:30

Fascinating. Wow, Kayla, I think what you’ve convinced me is that I would not want to make these decisions without you. [Laughs]

JoDee 13:38

Right. [Laughs] Me too.

Susan 13:38

It’s so murky! Ah. Is there anything else our listeners really should know as they’re trying to navigate through this?

Kayla 13:45

I think we’ve covered a lot of it. I would just emphasize again, it’s – especially with religious issues – it’s a case by case and fact specific analysis, so having one policy for all types of one religion is not going to work. And again, employees can share religion, but they can share religious different practices. So just to exercise caution on that point, and to really think about each individual case individually.

JoDee 14:11

And Kayla, you know, we’re the JoyPowered® podcast, so we love to hear from our guests about how they find joy in their work. What was your last JoyPowered® moment at work?

Kayla 14:25

I love my job [laughs] so it’s hard for me to pick. So this week, our law firm, Ice Miller, had a week of service, which has been great. So before COVID, we would have a day of service where we would go out as a firm together and do some type of community service project. And this week, we’re doing a week of service, so there’s a number of options that employees can choose to contribute to the community, whether that’s monetary or otherwise. And kind of the in-person team building part of this was that we built food kits this week for Horizon House, which is a nonprofit in Indianapolis that provides services to the homeless. So yesterday I was building food kits with some colleagues that I haven’t spent time with in a long while because of COVID, and it felt… felt really good to do that. So.

JoDee 15:10

Oh, I love it. Thank you for sharing that.

Susan 15:14

Kayla, thank you so much for being here today. How can our listeners reach you if they want to continue the conversation with you or consider engaging you to help them navigate this issue?

Kayla 15:23

I can be reached by email, and that’s at Kayla dot Ernst at Ice Miller dot com. Or my work number is 317-236-2411. All that information is also on the Ice Miller website, too.

Susan 15:36

And we’ll put it in our show notes as well. Well, thank you so much, Kayla.

JoDee 15:39

Yeah, thank you, Kayla.

Kayla 15:41

Thank you.

Susan 15:42

JoDee, I loved that discussion with Kayla. I do get a lot of questions from clients about this, because they’re all trying to put together their policies around the COVID-19 vaccine. They have employees say they don’t want to do it because of religion. And I think that folks just really want to do the right thing. So talking to an expert like her, I think, would give them confidence. I know it gave me more confidence.

JoDee 16:04

Yeah, I think you said it earlier, but that I wouldn’t want to be making these decisions without an attorney. So if you’re in one of those positions where you are the one making the decision or making recommendations, I would just highly encourage you to get some help and assistance, whether it’s an attorney or, you know, in-house legal counsel. It’s tricky stuff, and there’s no… as we just heard, there’s no clear solid rules on any of this.

JoDee 16:39

Susan, our listener question today comes from a job candidate. They said, “I’ve had friends and family tell me that I should be careful about what I’m posting online as someday it could affect my job prospects. Is that true?”

Susan 16:54

You may not want to hear the answer, but I’m going to say yes, I recommend being very thoughtful about anything you post on social media, including LinkedIn, including Facebook, Twitter, Tik Tok, anywhere. It’s absolutely your call as to what you want the universe to know about you and your opinions, but I think it’s important to recognize that individuals or employers who are not in alignment with your thinking may not want to work with you before they even take the time to get to know you. It isn’t fair, I get that, but I think it’s real. I found an article that ZipRecruiter put out that said that 90% of hiring managers look you up on social media before hiring you in some way, shape, or form. Isn’t that amazing, JoDee?

JoDee 17:40

Wow!

Susan 17:41

I know.

JoDee 17:41

90 percent! That’s high.

Susan 17:43

Like, how do they have time to do that? But evidently, they were doing it. And in fact, ZipRecruiter broke it down even further. They said that of those that are out taking a look at you before hiring you, 74% are looking at potential hires on Facebook.

JoDee 17:57

56% look on LinkedIn.

Susan 18:00

49% on Instagram.

JoDee 18:02

45% on Twitter.

Susan 18:05

43% just Google your name and see what comes up.

JoDee 18:09

And I bet this next one keeps going up – is 12% look you up on Tik Tok.

Susan 18:14

Yes. So please, listener, think about this. Make sure that if there’s stuff out there you don’t want the universe to know, take it down. And think about what you’re going to put up there. It just could have some impact in your future employability.

JoDee 18:27

Right.

Susan 18:28

JoDee, it’s time for in the news. A November 1, 2021 article by Chris Arey entitled “The Naked Truth on Pay Transparency” talked about a survey conducted by YouGov that reported that 28 million Americans – that’s 11% of the 1,276 people polled – would rather run naked through the office than let coworkers know what they earn, and another 88 million people wouldn’t rule it out.

JoDee 18:58

[Laughs]

Susan 18:58

Isn’t that amazing? JoDee, I tell you, I’d tell anything rather than run through an office naked. How about you?

JoDee 19:05

Same here, same here.

Susan 19:09

Interestingly, in the survey, more men – at 14% – said they were willing to run naked through the office than women, at 9%.

JoDee 19:18

Yeah.

Susan 19:19

Additionally, the study said 57% of Americans don’t want to emulate Norway’s practice of the government publishing everyone’s income online whether they’re government employees or not.

JoDee 19:30

Wow!

Susan 19:31

When I read this article, I went out and looked, and sure enough, you can… in Norway, if you know anyone there, you could go out and look and see what they earn. I think that the message is that… from this news article is that a lot of people are uncomfortable letting others know what they earn.

JoDee 19:45

I think about this frequently when I see government salaries posted in the newspaper or even, you know, we hear university professors and coaches or even in business journals when you see publicly traded companies. I just cringe every time I see them thinking about if mine were to be posted, what ramifications that would have. It’s fascinating.

Susan 20:11

It is to me, as well. My husband teaches at a university and it was a big switch, because he left corporate America to go into working for a state government, obviously, university. And yeah, it is. If you want to look him up, anyone in the world can, and it… for me, I think, oh, I’ve always guarded my pay just so closely. And he’s like, “you know what, if someone wants to know what I earn, fine with me.”

JoDee 20:32

Right.

Susan 20:33

Yeah, funny.

JoDee 20:35

Now it’s time for our Powerhouses segment, where we give a shout out to consultants and vendors in the people space to raise opportunities for others in our field, because we believe in abundance for everyone. This segment is brought to you by Powered by Purple Ink, the national network for people professionals. Learn more about PbPI at Powered by Purple Ink – with a K – dot com Okay, let’s get to our shout outs. DrewMor, a small business accounting firm, helps you know your numbers. Paylocity is the HR and payroll provider that frees you from the tasks of today so together, we can spend more time focused on the promise of tomorrow. NFP is a leading insurance broker and consultant providing specialized property and casualty, corporate benefits, retirement, and individual solutions through its licensed subsidiaries and affiliates. Best wishes to all of you as you endeavor to make work more joyful. Links will be in our show notes. And again, thanks to Powered by Purple Ink. Check out Powered by Purple Ink – with a K – dot com for more on today’s shout outs and how PbPI raises opportunity for people professionals.

JoDee 22:07

Well, thanks for listening today and make it a JoyPowered® day.

Susan 22:12

Thank you.

Susan 22:14

If you would like SHRM recertification credit for listening to this podcast, please visit getjoypowered.com/shrm. You’ll find an evaluation of the podcast and once you complete the evaluation, you will see the SHRM recertification credit code and a link to a proof of participation certificate. Again, that’s getjoypowered.com/shrm. Thank you for listening and thanks for your dedication to the HR profession.

Susan 22:42

Thank you for listening. If you liked the show, please tell your friends about it and let us know what you think by rating and reviewing us on Apple Podcasts.

JoDee 22:50

You can learn more about JoyPowered® at getjoypowered.com. Check out The JoyPowered® Shop, where you can order our books, journals, and other items that power our joy, at getjoypowered.com/shop. We’re @JoyPowered on Facebook, LinkedIn, Instagram, and Twitter and you can email us at joypowered@gmail.com.

Susan 23:18

We hope you tune in next time. Make it a JoyPowered® day.