Religious Exemptions for Employee Face Mask Mandates

In last month’s School Law Notes, we provided a brief overview of the legal standards for student religious exemption requests. Em­ployee exemption requests, however, involve different considera­tions, which we review below.

Free Exercise of Religion

The U.S. Supreme Court has consistently held that the First Amendment’s right to free exercise of religion does not relieve a per­son of the obligation to comply with valid and neutral laws of general applicability. The Sixth Circuit Court of Appeals, whose decisions are binding in Michigan, recently upheld a Michigan federal district court’s ruling that the face mask requirement in Michigan Depart­ment of Health and Human Services (MDHHS) orders issued between October 2020 and March 2021 did not violate the constitu­tional guarantee to free exercise of religion. Resurrection Sch v Hertel, Case No. 20-2256 (CA 6, Aug 23, 2021).

The Sixth Circuit concluded that the MDHHS face mask requirement was neutral and of general applicability and had ex­emptions that were narrow, discrete, and available regardless of re­ligious belief. The court also found that the face mask requirement was rationally related to a legitimate governmental interest – con­trolling the spread of COVID-19. Therefore, if a school’s face mask requirement: relates to public health, applies to all employees, and does not target religious practices, that requirement likely does not violate an employee’s First Amendment rights – even without religious exemptions.

Religious Accommodation

Title VII of the federal Civil Rights Act and Michigan’s Elliott-Larsen Civil Rights Act prohibit discrimination based on a number of protected characteristics, including religion. Federal reg­ulations require an employer to accommodate an employee’s sin­cerely held religious beliefs or practices unless the accommodation imposes an “undue hardship” on the employer.

An accommodation under these statutes is an undue hardship if it would impose more than a de minimis (i.e., minor) cost on the em­ployer’s business. Relevant factors in the undue hardship analysis include: type of workplace, nature of the employee’s duties, identifi­able cost of the accommodation in relation to the employer’s size and operating costs, and the number of employees who need the accommodation.

The cost factor considers not only the direct monetary costs, but also the burden on the employer’s business. See, EEOC Enforcement Guidance on Religious Discrimination, No. EEOC-CVG-2021-3 (January 15, 2021), available at:

https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination

Courts, including the Sixth Circuit, have found undue hardship when the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, causes co-workers to carry the ac­commodated employee’s share of potentially hazard­ous or burdensome work, or impairs workplace safety. Federal regulations do not require an employer to ac­commodate an employee’s sincerely held religious be­liefs when the accommodation would impose an undue hardship on the employer, including by impairing workplace safety. Because not masking exposes the em­ployee and others to increased risk of safety or harm during the pandemic, a school may deny an employee’s accommodation request on those grounds.

Offering Religious Exemptions

While a school is not legally required to offer employee religious exemptions to its own mask-wear­ing requirement, it may grant exceptions, absent a legal order requiring face masks regardless of religious ex­emptions (such as a local health department order). While a school may grant religious exemptions to its own face mask requirements, such action invites a legal challenge when another religious exemption is denied.

Critically, challenges to a person’s alleged religious beliefs have typically failed. Courts have explained that once a person alleges that “certain conduct violates their most sincerely held religious beliefs as they un­derstand them, it is not within the court’s purview to question the reasonableness of those allegations” or to say that the person’s “religious beliefs are mistaken or insubstantial.” Accordingly, authorizing religious ex­emptions creates a situation where it may become difficult to deny future religious exemption requests.

While not legally required, school officials may discuss with an employee whether any accommodation can be made to the face mask requirement that provides comparable public health protections to a cloth mask. Those measures could include a combination of clear face masks, clear plastic shields, and COVID-19 rapid testing. Before agreeing to any modifications to a face mask requirement, school officials should seek input from the local health department about the public health efficacy of the proposed modifications.

Conclusion

Absent a federal, state, or local order, school officials have discretion over whether to require em­ployees to wear face masks at school. If a school adopts a neutral and generally applicable face mask policy for employees with only limited exceptions, a reviewing court likely will not require the school to grant an ex­emption on religious grounds. Note that schools must continue to require face masks on school buses (for stu­dents and employees) under the January 29, 2021 Cen­ters for Disease Control and Prevention (CDC) Order, which does not have a religious exemption.