EEOC Issues Additional Guidance on Mandatory COVID-19 Vaccinations, Religious Objections and Accommodations

Fox Rothschild LLP

Fox Rothschild LLP

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers publication to provide additional guidance for employers on handling employee religious objections to COVID-19 vaccine mandates. While this additional guidance does not offer an easy solution for handling the religious objections to a vaccine mandate, it does provide helpful information regarding employers’ rights and responsibilities when faced with such an objection.

For those employers who want to read the full guidance, the updated section can be found here. Below, however, is a summary of the most pertinent information employers need when faced with religious objections by employees to workplace COVID-19 vaccine mandates.

Notification Requirement

Although employees do not need to use any specific language when requesting an exception to a COVID-19 vaccination requirement, employees must inform their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances. Employers should also know that some employees may have an objection to a specific vaccine because its development used fetal cell tissue and therefore they may wish to wait until an alternative version is available, which was developed without the use of fetal cell tissue. Regardless of whether these objections to specific vaccines are medically sound, employers should still follow the same religious objection procedures discussed below.

The EEOC guidance notes that, as a best practice, employers should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation from COVID-19 vaccine mandates.

Employers Request Additional Information

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on a sincerely held religious belief. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, they can make a limited factual inquiry into the nature or sincerity of the religious belief and request additional information, which the employee must provide. If an employee fails to cooperate with an employer’s reasonable request for additional information about the sincerity or religious nature of the professed belief, the employee will undermine their ability to claim that the employer failed to accommodate their request.

As the guidance notes, the definition of “religion” under Title VII protects non-traditional religious beliefs that may be unfamiliar to employers. Accordingly, employers should not assume that a request is invalid merely because it is based on an unfamiliar religious belief. However, because Title VII does not protect social, political or economic views, or personal preferences, employee objections to COVID-19 vaccination requirements that are based on social, political, or personal preferences, or on non-religious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII. Employers are therefore not required to grant accommodations based on such beliefs, preferences or concerns.

The EEOC guidance further notes that the sincerity of an employee’s stated religious belief typically should not be challenged, as, according to the EEOC, the sincerity of an employee’s religious belief is “largely a matter of individual credibility.” Some factors that employers can consider when evaluating an employee’s sincerity or credibility include: (1) whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); (2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons; (3) 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 (4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Employers may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. While prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may still be sincerely held. The EEOC cautions that no one factor or consideration is determinative and that employers should evaluate religious objections on an individual basis. Thus, employers should exercise extreme caution—and consult counsel—if they intend on questioning the sincerity of an employee’s professed religious belief.

“Undue Hardship” Accommodations

Once an employer determines that an employee’s religious objection is valid (i.e. sincerely held), the employer must offer a reasonable accommodation that does not pose an undue burden. Under Title VII, an employer should consider all possible reasonable accommodations, including telework and reassignment. The EEOC notes that employers can look to the Job Accommodation Network website for additional accommodation ideas.

If, however, the reasonable accommodation requested by an employee, or the only accommodations available to the employer, poses an undue hardship (i.e., a significant difficulty or expense) on the employer’s operations, no accommodation is required. The U.S. Supreme Court has held that requiring an employer to bear more than a de minimis, or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business including the risk of the spread of COVID-19 to other employees or to the public. Additionally, courts have found undue hardship where, for example, 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.

Although this may appear to be a low bar for employers to meet when considering accommodations, the EEOC guidance provides that employers need to assess undue hardship on a case-by-case basis and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. Employers cannot rely on speculative hardships when faced with an employee’s religious objection and instead should rely only on objective information. Particularly relevant to evaluating religious accommodations to a COVID-19 vaccination requirement are considerations such as whether the employee requesting the accommodation works outdoors or indoors, works in a solitary or group work setting or has close contact with other employees or members of the public (especially medically vulnerable individuals or those working in the hospitality industry). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer). Like when making the determination as to whether a religious belief is sincerely held, employers should exercise caution—and consult counsel—before determining whether an accommodation poses an undue hardship.

Granting Some, But Not All Requests

Just because an employer grants one or some religious accommodation requests does not mean the employer must grant all such requests. The EEOC guidance notes that a determination of whether a particular proposed accommodation imposes an undue hardship depends on its specific factual context and can be taken on a case-by-case basis. When an employer is assessing whether exempting an employee from getting a COVID-19 vaccination would impair workplace safety, it may consider, for example: (1) the type of workplace; (2) the nature of the employee’s duties; (3) the number of employees who are fully vaccinated; (4) how many employees and non-employees physically enter the workplace; and (5) the number of employees who will in fact need a particular accommodation. Although a fear that granting one religious accommodation will open the flood gates and result in many more employees seeking a religious accommodation in the future is not evidence of undue hardship, employers may take into account the cumulative cost or burden of granting accommodations to other employees.

Preferred Accommodations Not Guaranteed

If there is more than one reasonable accommodation that would resolve the conflict between the COVID-19 vaccination requirement and the sincerely held religious belief without causing an undue hardship, employers may choose which accommodation to offer. If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference, but is not obligated to provide the reasonable accommodation preferred by the employee. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted and engage in the interactive process with the employee to determine whether other accommodations are feasible. In some jurisdictions, such as New York City, employers are required to document that they engaged in the interactive process and what the outcome of that process was; however, it is recommended that regardless of any jurisdictional requirements, all employers document their engagement in the interactive process.

Employers Can Always Reconsider

Religious accommodations are not set in stone. The guidance makes clear that the obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances. For example, employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations. Likewise, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes or if the accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. The EEOC recommends that, as a best practice, employers should discuss with the employee any concerns they have about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Employer Takeaways

Religious objections to COVID-19 vaccine mandates are tricky and often uncomfortable for employers to deal with. Unlike medical exemptions, employers may not have access to documentation proving the need for a religious exemption, and no one wants to be seen as questioning their employees’ religious beliefs. Employers should also keep in mind that state and local laws may provide additional “protections” for religious employees (and employees who generally refuse to get vaccinated) that go beyond the requirements of Title VII. Accordingly, while employers should usually take religious accommodation requests at face value, they need to approach such requests with caution, and seek the advice of counsel when handling such requests.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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