Dive Brief:

• An employer violated federal law when it refused to grant an employee an exemption from its mandatory flu shot policy without a note from a clergy leader, the federal government has alleged in a lawsuit (U.S. v. Ozaukee County, Wisconsin, No. 2:18-cv-00343 (E.D. Wisc., March 6, 2018).
• The employee, a nursing home assistant, made clear that her religious beliefs prevented her from complying with the policy, according to the complaint. The employer, Ozaukee County, Wisconsin, required that employees needing exemptions provide a note from a clergy leader. She said she couldn't, as she was not affiliated with a church or organized religion; instead, she offered to provide letters from family and friends attesting to her sincerely held religious beliefs. When she was told that wasn’t sufficient and threatened with immediate termination, she agreed to the vaccination.
• DOJ has alleged that the employer failed to grant a reasonable accommodation, in violation of Title VII of the Civil Rights Act's religious discrimination prohibitions. The county has since changed its policy.

Dive Insight:

Title VII protects employees from discrimination based on their religion and also requires employers to accommodate religious beliefs under certain circumstances.

The U.S. Equal Employment Opportunity Commission (EEOC) says that employers should generally take employees at their word that their beliefs are sincerely held. But if the employer has real reason to doubt the employee's statements, "it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim," according an agency guidance document, "Questions and Answers: Religious Discrimination in the Workplace."

According to EEOC, factors that are not necessarily proof of dishonesty but that might undermine an employee's assertion include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Still, it's not a best practice to require a clergy note to support a religious accommodation request, because an employee only needs to have a sincerely held religious belief; it is irrelevant whether an employee is part of an organized religion, Kyla J. Miller and Dawn Reddy Solowey, attorneys with Seyfarth Shaw LLP, wrote in a blog post for the firm.

This is especially important in light of the EEOC’s aggressive approach to mandatory flu shots in recent years, targeting employers who terminate employees who refuse the shot based on a religious belief, Miller and Solowey noted.

More than 600 health care organizations in the U.S. have taken a hard line, requiring employees get a flu vaccine or risk losing their jobs, but those policies aren't going unchallenged. Some employers are pushing back, defending these lawsuits, while others have entered into substantial settlements with EEOC to resolve the claims.

It wasn't clear whether the agency's enforcement priorities would shift following the administration change, but the independent agency appears committed to many of its same priorities, including flu shot policies.