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Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.

Quick recap of the “religious exemption”

Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.

Determining what a “sincerely held” religious belief means

Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.Continue Reading Help! We have had a major influx in religious accommodation requests from our mandatory vaccine policy

The current prominence of the multi-entity workplace—where so-called “host” employers rely on third-party staffing agencies to perform various functions—makes a clear determination of statutory “employer” status critical in a variety of contexts.  Oftentimes, a host employer will argue that a worker is an independent contractor rather than employee.  This approach typically leaves the staffing agency responsible for classification decisions under the Fair Labor Standards Act and for Occupational Safety and Health Act compliance.

In April 2021, the Texas Supreme Court greatly expanded the responsibility of host employers in the context of workplace injuries.  Specifically, in Waste Management of Texas, Inc. v. Stevenson, the Court held that a worker who was injured on the job while employed by a temporary staffing agency was the host employer’s employee for workers’ compensation purposes, notwithstanding a contract between the host employer and staffing agency that expressly stated workers were independent contractors.

In Waste Management, the plaintiff, Robert Stevenson, was hired by Taylor Smith Consulting, LLC and assigned to work for Waste Management of Texas, Inc. on a temporary basis.  No. 19-0282, 2021 Tex. LEXIS 348, at *3 (Apr. 30, 2021).  In May 2014, Stevenson was working on a Waste Management garbage truck on a garbage-collection route when the driver of the truck accidentally backed over Stevenson’s leg and foot.  Both Waste Management and Stevenson’s staffing agency employer carried workers’ compensation insurance.  Stevenson applied for benefits under the staffing agency’s policy and separately filed suit against Waste Management and the driver, alleging common-law negligence.  Waste Management won summary judgment, successfully arguing that, because it was Stevenson’s employer, the Texas Workers’ Compensation Act barred Stevenson’s claims against it and the driver.  Stevenson unsuccessfully argued that the staffing contract, which expressly stated that temporary workers like Stevenson “shall be independent contractors in respect of Waste Management”, should govern.  The Fourteenth Court of Appeals reversed and remanded, holding there was a genuine fact issue as to whether Stevenson was Waste Management’s employee.
Continue Reading Texas Supreme Court finds injured contract worker was an employee for workers’ compensation purposes

On June 18, 2020, the U.S. Supreme Court issued a decision allowing the Deferred Action for Childhood Arrivals (DACA) program to continue operating. In so holding, the Court found the Department of Homeland Security (DHS) did not provide an adequate justification for terminating the DACA program and, thereby, violated the Administrative Procedure Act (APA).[1] But the Court’s decision does not resolve the matter entirely.

The Court did not rule on the legality of the DACA program itself. Instead, it merely repudiated the way DHS tried to rescind it. Although the Court held the DHS’s justification to terminate DACA was arbitrary and capricious, it recognized the DHS has the authority to rescind the program if it follows the required APA procedure. Thus, the DHS could try again to end the program by explaining more clearly its reasons for doing so.

Below, we answer two questions: (1) What is the status of the DACA program; and (2) What impact will the Court’s ruling have on DACA recipients and employers?Continue Reading Understanding the employment implications of the Supreme Court decision upholding DACA

On June 19, 2020, Harris County Judge Lina Hidalgo issued an order (the Order) requiring businesses in Harris County, Texas, that provide goods and services directly to the public to develop, post, and implement a health and safety policy that requires employees and visitors age 10 and older to wear face coverings when in

In the first phase of an effort to restart parts of Texas’ economy, on April 27, Texas Governor Greg Abbott issued an executive order allowing certain businesses – retail establishments, restaurants, movie theaters, shopping malls, museums, libraries, golf courses, and services provided by an individual working alone in an office – to reopen on May 1, 2020, with most subject to certain restrictions regarding occupancy.  Governor Abbott’s order, Executive Order GA-18, supersedes his prior executive stay-at-home order (Executive Order GA-16) and any conflicting local order, including, as discussed below, such orders that impose a civil or criminal penalty for failure to wear a face covering.

Executive Order GA-18 continues to allow business providing “essential services” to operate.  “Essential services” continues to include everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure, Version 3.0 or any subsequent version, plus religious services conducted in churches, congregations, and houses of worship.
Continue Reading Texas partially reopens businesses effective May 1st

On September 24, 2019, the U.S. Department of Labor (DOL) published a highly anticipated final rule that updates the salary thresholds necessary to qualify for overtime exemptions – often referred to as the “salary level test” – under the Fair Labor Standards Act (the 2019 Final Rule).[1] This rule will replace the prior final rule published on May 23, 2016 (the 2016 Final Rule) under the Obama administration, which was enjoined in 2016 and remains the subject of an abated appeal pending before the Fifth Circuit Court of Appeals.

The DOL published the Notice of Proposed Rulemaking (NPRM) underlying the new rule on March 22, 2019. In response, the DOL received more than 116,000 comments. Based on those comments, the DOL made several changes that are reflected in the 2019 Final Rule.Continue Reading DOL final overtime rule issued with few significant changes from 2019 proposed rule