On October 25, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance with the addition of Section L to address employer obligations under Title VII of the Civil Rights Act of 1964 and religious objections to employer vaccine mandates. The update provides vital guidance to employers to navigate employee requests for religious exemptions from the employers’ vaccine requirements, specifically those covered by the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS).

Section L does not represent new policy but instead applies familiar principles to a specific scenario in order to provide succinct aid to employers’ assessment of the increasing number of religious accommodation requests. As with an ordinary request for a religious accommodation, the EEOC counsels employers to make an individualized assessment of each request in light of the particular facts of each situation when an employee seeks a religious exemption from an employer’s mandate. Employers should also consult state-specific rules and mandates for religious exemptions. A summary of important takeaways from the EEOC follows:

• Employee notification of religious objection: If there is a conflict between an employer’s vaccine requirement and an employee’s sincerely held religious beliefs, practices, or observances, the employee must notify their employer. No “magic words” (i.e. “religious accommodation” or “Title VII”) ­are required in order to qualify as a religious accommodation request. The EEOC suggests that employers provide employees and applicants with information about whom they must contact and the appropriate procedures to make the request. The EEOC provides its internal religious accommodation request form as further guidance.
• Questioning the sincerity of religious beliefs: Employers should generally assume that a request for a religious accommodation is based on sincerely held religious beliefs. But, if there is an objective basis to question the religious nature or the sincerity of a particular belief, an employer may make a limited factual inquiry to seek additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing a subsequent claim that the employer improperly denied an accommodation. Factors to consider in the evaluation process include, but are not limited to, (i) whether the employee has acted in a manner inconsistent with the professed belief; (ii) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; (iii) whether the timing of the request renders it suspect; and (iv) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
• Whether a vaccine exemption constitutes an “undue hardship”: Employers are not required to grant all requests for religious accommodations, particularly if doing so would constitute an undue hardship. Courts define “undue hardship” as having more than a “de minimis,” or a minimal, cost or burden on the employer. An accommodation may constitute an undue hardship where it 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. In addition, some considerations relevant to assessing undue hardship include, but are not limited to, the extent of close contact with other employees and the public at large, whether the employee works in group settings, and the cumulative cost or burden to the employer if multiple employees seek a similar accommodation.
• Selecting one of multiple possible reasonable accommodations: An employer is not obligated to provide the employee’s preferred accommodation, just an effective one. Reasonable accommodations for an unvaccinated employee may require the employee to undergo weekly testing for COVID-19 along with mandatory masking (as required under the ETS), social distancing from coworkers or nonemployees, working a modified shift, teleworking, or reassignment. Providing a religious accommodation is a continuing obligation that must take into account changing circumstances. As such, employees may ask for additional/ different religious accommodations and similarly, an employer has the right to discontinue previously granted accommodations. Employers should communicate with their employees before unilaterally revoking or adjusting any religious accommodations.

Requests for religious accommodations may be difficult to assess and parse through. Employers should proceed with reasonable caution before denying a request for religious accommodation on the basis the employer believes the professed belief is insincere. As a best practice, employers should have an attorney assess requests for reasonable accommodations and involve counsel prior to denying a request.

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