EEOC Issues New Guidance Regarding Title VII and Religious Objections to COVID-19 Vaccine Mandates

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On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers and employees regarding religious objections to COVID-19 Vaccine Mandates. With many employers implementing COVID-19 vaccine requirements, (discussed in our October 8, 2021 blog post), employees may be requesting religious accommodations. As such, this updated guidance is helpful for employers seeking to ensure compliance with Title VII.

Title VII, in part, prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request a religious accommodation from an employment requirement that conflicts or interferes with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant an accommodation.

Some key takeaways from the EEOC guidance:

  • It is best practice for an employer to provide employees with information about who to contact and the procedures for requesting an accommodation.
  • An employer has to look at the totality of facts available to them when evaluating a religious objection – no one fact is dispositive.
  • Relevant considerations for an employer to determine what would be an undue hardship under Title VII include: “whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public.” Additionally, an employer may consider “the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer if they were to accommodate all requesting employees).
  • An employer is not required to give the specific accommodation requested by the employee. If there are multiple reasonable accommodations “that would resolve the conflict between the vaccine requirement and the employee’s sincerely held belief, an employer may choose which accommodation to offer.”

This EEOC guidance answers some questions related to vaccine mandates, but some important questions still remain, including, if an accommodation of weekly testing is given, must the employer pay for it?

The recent Occupational Safety and Health Administration (“OSHA”) guidance, described in this blog post, addressed this question for employers with at least 100 workers. Under the ETS, OSHA determined that it is not “appropriate” for the employer to bear the cost of the tests themselves. However, the costs of the tests will likely fall under state laws in places like California and Illinois that require employers to reimburse employees for job-related expenses. Given that the cost of a COVID-19 test can range from $20 per test to $850, this is a substantial cumulative cost for employers to bear.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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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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