Labor & Employment Alert: EEOC Provides Technical Guidance on Vaccine "Religious" Objections

November 1, 2021 Update: We previously alerted our clients to the fact that the EEOC had issued formal recommendations for how employers should respond to requests for religious accommodations in the course of responding to Covid issues, such as mandatory vaccination policies.  Yesterday, the EEOC went one step further, stating: “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.  As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.” In the interests of making that information available to you, and not “reinventing the wheel,” Here is the format which EEOC is recommending – revised to change it from an EEOC internal form to one which you can use in your own business:

All employers dealing with, or considering imposing Covid vaccine requirements on employees have, no doubt, been concerned about how to respond to individuals asserting a right to an exemption for “religious” reasons. This legal territory is not really new, inasmuch as, for years, some employers have been imposing other vaccination requirements (e.g., healthcare facilities requiring annual flu shots); and the courts have addressed them. But, because the all-encompassing nature of the Covid crisis has brought this into all employers’ daily HR purviews, most employers are needing to address this for the first time.

To the rescue comes the federal Equal Employment Opportunity Commission, which, yesterday, issued “technical guidance” intended to advise employers of the legal requirements from their point of view.  Here is a summary of their advice ¹

1.      Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? 

 Yes, employees asking for accommodation in a work requirement need to say so; but they don’t need to use any particular words or terminology. They do 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 same applies if the individual has an objection to one version/brand of vaccine over another.

2.      Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? Or may the employer ask for additional information?

Yes, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. Unless, the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking 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 any subsequent claim that the employer improperly denied accommodation.)

Factors that – either alone or in combination – might provide such an “objective basis” for questioning an employee’s credibility include:  whether the employee has 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.

An employer may also ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

Bear in mind that, for this purpose, the definition of “religion” extends to nontraditional religious beliefs that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. 

That said, there is an important distinction:  the law does not protect social, political, or economic views, or personal preferences – so, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, the law does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

3.      If an employee legitimately requests an accommodation for a religious reason, the employer is required to consider it, unless doing so would create an “undue hardship.” 

An employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then the law does not require the employer to provide the accommodation.

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. 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. 

This assessment by the employer requires looking at the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. 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 similar accommodation (i.e., the cumulative cost or burden on the employer).

 4.      If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs?

Not necessarily.The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context of the request being made at the time.

An employer 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.  

5.      Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII?

No.  If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship, the employer 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. 

6.      If an employer grants religious accommodation to an employee, can the employer later reconsider it?

Yes. The obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances. Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstance.