EEOC Releases Updated Guidance Regarding Religious Exemptions to Mandatory Vaccination

Stradling Yocca Carlson & Rauth

Stradling Yocca Carlson & Rauth

On Monday, October 25th, the EEOC updated its COVID-19 Technical Assistance Document to include guidance on how employers should approach requests for religious exemptions. The Technical Assistance does not greatly differ from prior EEOC guidance which discusses religious exemptions generally, See Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion, however it provides a helpful application of these principals to the context of COVID-19 vaccination. Below is a summary of the updated guidance.

Employees Must Tell Their Employer If They Are Requesting A Religious Exemption

When an employer has a mandatory vaccination requirement, it is up to the employee to let the employer know that they may qualify for a religious exemption. The employer is not obligated to reach out to every employee to determine whether or not they will be seeking an exemption. The employee is not required to use any “magic words,” however, “they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.” The guidance further states that, as a best practice, employers should let their employees know who to contact, and what procedures to use, when requesting a religious exemption.

Additionally, the guidance contemplates that employees may have an objection to a particular vaccine and wish to wait until an alternative version or specific brand is available. This is important because some religious exemptions are based on the use of fetal cell tissue in the development of certain vaccines. Regardless of the medical efficacy of these objections, this objection can be limited to a certain vaccine rather than vaccines in general.

Employers Do Not Always Have To Accept The Religious Accommodation Request At Face Value

Generally, employers should assume that the employee’s religious accommodation request is based on a sincerely held religious belief. However, if an employer has an “objective basis” to question either the religious nature or sincerity of the religious belief, the employer can make a “limited” factual inquiry regarding the request. In all likelihood, the employee will be able to provide additional detail regarding their request, however, if the employee fails to cooperate with the employers reasonable request for additional information their ability to claim that the employer failed to accommodate their request is significantly hampered.

Under the Federal anti-discrimination law, Title VII the definition of religion is broad and not limited to traditionally recognized religions, however, the definition of religion does not extend to social, political, economic beliefs, or personal preferences. So any objections to the vaccine regarding possible side effects or political preferences do not need to be accommodated. Practically speaking, this broad definition means that it is difficult to challenge a request for religious exemption on the basis that it is not “religious.”

Additionally, it may be difficult to challenge the sincerity of an employee’s beliefs. The guidance lists several factors employers may consider: (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 nonreligious 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. While this framework can be helpful, there is little guidance on how to apply it and what factors should be weighed more heavily than others. The updated EEOC guidance merely states that “No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.” As a result, we recommend reaching out to your legal counsel if you are faced with weighing these factors.

The guidance further indicates that employers should not place too much stock in prior inconsistent behavior because an employee’s beliefs may change over time. However, while this generally means that an employee’s past activity contrary to their beliefs should not result in an employer denying the accommodation, it can also mean that an accommodation can be revoked if an employee later acts in contravention to their beliefs. For instance if the employee requests and is granted a religious exemption on the basis that the vaccine used fetal cell tissue but they later obtain an abortion, employers may be able to question the sincerity of the employees earlier request.

Accommodations That Present An “Undue Hardship” Do Not Need To Be Granted

After the employer had determined that the employees has a valid exemption request, they must offer a reasonable accommodation that does not pose an “undue hardship.” Employers should consider all possible accommodations including, telework, reassignment, and increased testing to name a few (additional accommodation options can be found HERE). However, the 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, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

While this may seem like a fairly low bar, employers should be weary to readily deny accommodations based on undue hardship. The EEOC guidance states that this decision must be made on a case by case basis. Certain common and relevant considerations during the COVID-19 pandemic include, for example, 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 (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer). While this guidance provides some direction, we suggest reaching out to your legal counsel when faced with this issue.

Granting One Request Does Not Mean That the Employer Has To Grant All Requests For Religious Accommodation

The EEOC guidance makes clear that requests for religious accommodation must be made on a case by case basis. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. For example, an accommodation may be possible for an employee who works outside, but not for an employee who is required to work alongside someone who has heart or respiratory problems.

Employers Do Not Have To Grant The Employees Preferred Accommodation

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. For instance, if the employee has requested to work from home, but it would be more efficient for them to work from the office and wear a mask be subject to testing, the employer may offer the latter option. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

Employers Can Reconsider Religious Accommodation

The guidance makes clear that employers can reevaluate requests for religious accommodations based on changing circumstances. For instance, if the employee begins acting in a way that calls the sincerity of their beliefs into question or if the current accommodation is no longer working. However, before denying the request or changing the accommodation, the employer should ask for additional information from the employee and work with them to see if another accommodation is available.

Annual Update

Jeff Dinkin and Jared Speier will be discussing this guidance, mandatory vaccination, and other developments in employment law at their annual update on November 18, 2021 at 8 am. This is the one webinar you should not miss. Register here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

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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