Q: We just extended an offer of employment to a candidate, without first inquiring about their vaccination status. They accepted our offer, then indicated they were not vaccinated and objected to the vaccine on religious grounds.
Our company as a whole does not mandate the vaccine, but this particular position requires heavy interaction with children, many who are too young to be vaccinated.
Can we rescind the offer, despite the candidate’s claimed religious objection to the vaccine? Are we allowed to mandate the vaccine for some, but not all of our employees?
A: The answer to both questions is “yes,” but there are a few things that must be established first.
Title VII of the Civil Rights Act of 1964 applies to the rescission of the offer of employment. Title VII prohibits employment discrimination based on race, color, sex, national origin and religion.
The prohibition on religious discrimination means that employers may have to accommodate an employee’s religious objections to employer policies, including vaccine mandates.
More specifically to this case, federal law requires that once an employer receives notice that an employee’s sincerely held religious belief, practice or observance, prevents them from getting a vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.
In this case, that may be the interaction with unvaccinated children if proven correctly.
‘Sincerely Held Religious Beliefs’
The Equal Employment Opportunity Commission notes the definition of religion is broad. The law protects beliefs, practices, and observances that may be unfamiliar to the employer.
Ordinarily, the employer should assume an employee’s request for religious accommodation is based on sincerely held religious beliefs.
However, with the ballooning number of religious exemption requests in response to COVID-19 vaccine mandates, many employers are requesting written documentation explaining the basis for the religious exemption.
If an employer has a basis for questioning either the religious nature of an objection, or the sincerity of an employee’s religious belief, the company is justified in requesting additional information.
In this case, we’re assuming the religious objection is sincere. The requirement is for the employer to accommodate this religious objection by waiving the vaccine mandate unless it would pose an undue hardship for the company.
Courts define “undue hardship” under Title VII as having more than minimal cost or burden on the employer.
The EEOC specifically recognized one consideration relevant to “undue hardship” as an employee’s required contact with non-employees, who either have an unknown vaccination status, or who are ineligible for the vaccine.
If the employer can establish the candidate’s position requires significant in-person interaction with unvaccinated children, and that reassignment to another position is not possible, then the employer will likely have proven “undue hardship,” and can rescind the offer.
Mandates for Some, Not All
An employer may decide that only some employees work in positions that require a COVID-19 vaccine.
Employers cannot distinguish between employees based on their membership in protected classes, such as race, gender, disability, etc, but may make business-related decisions that require the vaccine for some, but not all employees.
There are resources available for those unsure about how to accommodate exemption requests.