Page 33 - Network Magazine Fall 2018
P. 33

 ing for a “letter from the clergy” may be a violation of the law. If an employee articulates a sincerely-held religious belief and can state the reasons for such a belief and the reasons for the accommodation request, the employer’s follow-up inquiry should be limited to determine if the accommodation can be provided. Employers should not, generally, force employees to document their religious beliefs in order to obtain an accommodation. As with Costanza, not all religions are organized or established and need not be so in order to be afforded protections under the law.
Employers who have union employees and are subject to collective bargaining agreements have additional concerns. The National Labor Relations Board, which interprets and enforces the National Labor Relations Act, has stated that flu policies are subjects of manda- tory bargaining. As such, unless a “Management Rights” provision in the collective bargaining agreement permits an employer to unilaterally implement such a policy, the employer is required to sit at a table with the union and agree, generally, to the terms to be included in the policy.
Employers must be mindful of their legal requirements generally if an employee requests a religious accom- modation and specifically if it is done in response to a mandatory influenza vaccine policy. While the Fallon employer was lucky in that the employee's belief was not "religious" in nature, that is not always the case and is rare for a court to find in such a manner. Employers should not generally question an employee's beliefs, but instead, determine if they can accommodate the request. Additionally, employers should ensure that all policies, including an influenza vaccination policy, are handled in a consistent and uniform manner. Doing so will hopefully avoid being subject to a lawsuit or being on the receiving side of the airing of grievances at Festivus.

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