Dealing with Religious Objections to Mandatory COVID-19 Vaccination Requirements: The EEOC Issues Clarifying Technical Assistance for Employers

Pullman & Comley - Labor, Employment and Employee Benefits Law

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued long-awaited technical assistance concerning employees’ religious objections to vaccine requirements in the workplace. (The new guidance is Section L of the EEOC’s Q&A document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which can be found here.) Though several state governments, and the federal government, have already issued COVID-19 vaccine mandates for employers, the EEOC’s guidance is quite timely as employers continue to face the often-thorny process of assessing religious accommodation requests from their employees. In case you missed it, we covered the mandate for federal contractors in an earlier article.

The guidance reminds employers that it is the employee’s burden to tell their employer if they are requesting an exception to a vaccination requirement (a “religious accommodation”) because of a conflict with a sincerely held religious belief, practice or observance (“religious beliefs”). Employers should note that employees do not have to recite any specific “magic words” or reference specific laws in order to put the employer on notice that they are seeking a religious accommodation, so long as they notify the employer that a vaccination requirement conflicts with a sincerely held religious belief. The EEOC advises that these principles also apply if an employee expresses a religious conflict with a particular vaccine and wishes to wait until another version or brand of vaccine is available.

Evaluating Sincerity
The guidance directs employers to assume that a request for religious accommodation is based on a sincerely held religious belief unless there is an objective basis for questioning either the religious nature or the sincerity of a particular professed belief. An employee’s sincerity is “largely a matter of individual credibility” and may be evaluated using a combination of factors:

  • whether the employee has previously 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 employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement and may make a limited factual inquiry of the employee to seek additional supporting information. The EEOC advises that employers should be mindful that an individual’s beliefs or adherence to beliefs may change over time such that even newly adopted or inconsistently observed practices may be sincerely held. It should not be assumed that an employee is insincere simply because an employee’s practices deviate from the common tenets of their religion or because they observe some practices but not others.

Even though a professed religious belief may be unfamiliar to the employer, this does not mean that it is not protected under Title VII. If an employer is unfamiliar with the religious belief of an employee seeking a religious accommodation, the employee may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. Title VII is not so broad as to protect nonreligious ideologies, however. An employee’s social, political, or economic views, or personal preferences are not protected by Title VII. For example, a nonreligious concern about the possible side effects of the vaccine do not qualify as “religious beliefs” under Title VII.

On the other hand, an employee risks losing any subsequent claim that an employer improperly denied a religious accommodation if he or she is uncooperative with an employer’s reasonable request for verification of the sincerity or religious nature of the professed belief. Further, when the employee’s objection to a vaccination requirement is not religious in nature or is not sincerely held, an employer is not required to provide an exception to a vaccine requirement as a religious accommodation under Title VII.

Assessing Undue Hardship
If an employer determines that an employee’s professed religious objection to vaccination is sincere, it next must decide whether providing an accommodation would impose an “undue hardship” on its operations. The guidance reminds employers to consider all possible reasonable accommodations in response to an employee’s request for religious accommodation. If an employer must bear more than a “de minimis” (i.e., minimal) cost to accommodate an employee’s religious belief, the employer may be justified in denying the requested accommodation based on undue hardship. When evaluating the cost to accommodate, employers may consider the burden on the conduct of the employer’s business, and the risk of viral spread to employees or the public, as well as any direct monetary costs associated with the proposed accommodation. The EEOC notes some examples where undue hardship may exist, including where a 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.

An assessment of undue hardship depends on the particular facts of each situation, and an employer will need to demonstrate how much cost or disruption an employee’s accommodation would involve, based on objective information, if it determines an accommodation will impose an undue hardship. The guidance notes that it is not enough for an employer to rely on speculative hardships. Examples of objective information that are especially pertinent in the context of COVID-19 vaccination requirements include whether work is performed outdoors or indoors, performed in a solitary or group setting, and whether work involves close contact with other people, especially those who may be medically vulnerable. Though the guidance also recognizes the number of employees who are seeking a similar accommodation (e.g., cumulative cost or burden to the employer) as a relevant consideration in assessing undue hardship, employers cannot rely on a mere assumption that more employees might seek a religious accommodation to the vaccination requirement in the future. Similarly, the guidance clarifies that an employer is not required to grant all religious accommodation requests simply because it has granted the requests of some employees.

An Employer’s Right to Discontinue a Previously Granted Accommodation
Significantly, the guidance explains that the obligation to provide religious accommodations absent undue hardship is a continuing obligation that considers changing circumstances affecting both the employee and the employer. Just as employees’ religious beliefs and practices may evolve over time, a religious accommodation may be discontinued if it no longer is utilized for religious purposes, or if a provided accommodation later poses an undue hardship on an employer’s operations due to changed circumstances. In other words, granting a religious accommodation does not bind the employer for all eternity. However, an employer should discuss with the employee concerns it has about continuing a religious accommodation before revoking it and consider whether any alternative accommodations would be possible.

Takeaways
Communication is key. As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation. If an employer denies an employee’s preferred religious accommodation, it should consider an alternative accommodation if another option would be effective in eliminating the religious conflict and explain to the employee why the preferred accommodation is not being granted. All possible alternatives should be considered when determining whether an exemption to a vaccination requirement would impose an undue hardship on the employer. An employer should rely on objective information in assessing whether a religious accommodation would present an undue hardship. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. Employers should also consult with counsel as questions of religious accommodations arise.

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