EEOC Updates Guidance on Religious Accommodation Requests Under Workplace COVID-19 Vaccine Mandates

On October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) released updated guidance addressing when companies must exempt workers from COVID-19 vaccine mandates for religious reasons.  The EEOC’s guidance document, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” was first issued at the outset of the pandemic and has been updated as the legal and medical landscape continues to shift.  While these new updates track previously-existing guidance for general religious exemptions, they serve a helpful purpose during a time when more employers are adopting vaccine mandates, either voluntarily or in response to President Biden’s executive orders.  Indeed, given the pending OSHA Emergency Temporary Standards (“ETS”) (expected any day now), which would require certain private employers to mandate the vaccine, the additional guidance is particularly (and likely intentionally) timely.

Employees Must Request a Religious Accommodation.

Under Title VII of the Civil Rights Act of 1964 (“Title VII”), employees may request a “religious accommodation” or “reasonable accommodation” if a COVID-19 vaccination conflicts with their sincerely held religious beliefs, practices, or observances by notifying the employer.  The EEOC noted there are no “magic words” to request such an exception to a COVID-19 vaccination requirement.

Recommended Best Practice: Employers should provide employees and applicants with contact information, applicable procedures, and/or forms for requesting a religious accommodation.

Employers May Ask For Additional Information Under Certain Circumstances. 

While employers should generally assume an employee’s professed religious belief is sincere, employers may seek more information in certain circumstances.  If employers have an objective basis for questioning either the religious nature or the sincerity of a particular belief, employers may justifiably seek additional supporting information through a limited factual inquiry. An employee who fails to provide that additional, requested information may risk losing any subsequent claim that the employer improperly denied an accommodation.

The definition of “religion” under Title VII also protects non-traditional or unfamiliar religious beliefs and, in such cases, employees may be asked to explain the religious nature of their belief.  However, the EEOC expressly states that Title VII does not protect social, political, or economic views, or personal preferences—meaning objections to COVID-19 vaccination based on social, political, or personal preference, or on non-religious concerns about possible vaccine side effects are not protected “religious beliefs” under Title VII.

While the sincerity of employees’ stated religious beliefs are typically not disputed, the EEOC lists several factors that (alone or in combination) may undermine an employee’s credibility:

• Whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
• Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious 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.

The EEOC cautions employers that an individual’s beliefs or degree of adherence to such beliefs may change over time. For this reason, employers should not assume an employee’s belief is insincere because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.

Recommended Best Practice: Employers should evaluate religious objections on an individual, case-by-case basis.  Additionally, given the subjective nature of whether a particular religious belief is “sincerely held,” employers may be better off focusing on whether the underlying accommodation would be an “undue hardship” on the organization, detailed more fully below.

Employers Need Not Provide an Accommodation That Is an Undue Hardship.

Under Title VII, employers should consider all possible reasonable accommodations, like telework and reassignment, for employees seeking religious accommodation or exemption from a COVID-19 vaccine requirement.  However, Title VII does not require employers to provide reasonable accommodations for an employee’s religious belief when such accommodation would impose an “undue hardship” on its operations.

Undue hardship requires more than a “de minimis,” or minimal, cost to employers under Title VII and can include direct monetary costs, the risks of COVID-19 spread, and other burdens on business.  Courts have found undue hardship in Title VII cases where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Recommended Best Practice: Employers should use objective information to assess undue hardship on a case-by-case basis and consider how much cost or disruption the employee’s proposed accommodation would involve.  For example, employers may consider the number of employees seeking accommodation, and the workplace environment of the employee requesting religious accommodation for the COVID-19 vaccination—such as whether the requesting employee works outdoors or indoors, in a solitary or group setting, or has close contact with other employees and members of the public.

Employers May Choose the Accommodation.

If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.  The EEOC states that the employer should consider the employee’s preference, but is not obligated to provide that employee’s preferred accommodation so long as the employer’s proposed option would be effective.  In such cases where an employee’s preferred accommodation is denied, the employer should explain and document the reasons why.

Recommended Best Practice: Employers should engage with employees regarding their accommodation request, and document the discussions and resulting decisions in a timely manner. 

Accommodations Are Subject to Change.

Finally, the EEOC notes that the obligation to provide religious accommodations is a continuing one and employers should take into account changing circumstances. For this reason, employers may later reconsider their decisions after granting a religious accommodation to an employee.  Specifically, employers have the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

Recommended Best Practice: Before revoking an employee’s religious accommodation, employers should discuss concerns with the employee and consider whether there are alternative accommodations that would not impose an undue hardship.