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October 28, 2021

EEOC Updates Guidance to Address Religious Objections to COVID-19 Vaccine Mandates

An increasing number of employees are requesting religious exemptions from workplace COVID-19 vaccine requirements, raising questions about accommodation rules for employers. In response, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal antidiscrimination laws, including Title VII of the Civil Rights Act of 1964 (Title VII), recently supplemented its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address the interplay between Title VII and religious objections to COVID-19 vaccine mandates. Below are some of the key takeaways from the EEOC guidance for employers to consider.

Employee Requests

To request an exception or accommodation, employees must notify their employer that a conflict exists between the vaccine requirement and their sincerely held religious beliefs, practices, or observances. No “magic words,” such as “Title VII” or “religious accommodation,” are needed to make the request. The EEOC recommends, as a best practice, that employers provide employees and applicants with information about whom to contact and the procedures, if any, for requesting a religious accommodation.

Sincerely Held Religious Beliefs

An employer should generally “assume that a request for a religious accommodation is based on sincerely held religious beliefs.” Notably, however, the EEOC guidance also states that an employer would be justified in “making a limited factual inquiry and seeking additional supporting information” if the employer “has an objective basis for questioning either the religious nature or the sincerity of a particular belief.” In this regard, 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 an accommodation. 

Because Title VII protects nontraditional religious beliefs, employers should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, and in a similar vein, employees 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 does not, however, protect social, political, or economic views or personal preferences, and as such, objections to COVID-19 vaccination requirements that are based on nonreligious concerns do not qualify as “religious beliefs” under Title VII.  

The sincerity of an employee’s purported religious belief is often not in dispute and “largely a matter of individual credibility.” The EEOC guidance provides the following factors that, either alone or in combination, might undermine an employee’s credibility:

•    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)
•    Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons

No one factor is dispositive and, according to the EEOC guidance, “employers should evaluate religious objections on an individual basis.” 

Ultimately, if an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation. Conversely, if an employee’s objection to a COVID-19 vaccination requirement is religious in nature and a sincerely held belief, the employer should thoroughly consider all possible reasonable accommodations. If there is more than one reasonable accommodation that would resolve the conflict without causing an undue hardship (discussed below), the employer should consider the employee’s preference; however, in the end, the employer may choose which accommodation to offer. Additionally, if circumstances change after the employer has granted a religious accommodation and the request poses an undue hardship or the accommodation is no longer utilized for religious purposes, the employer has the right to discontinue that arrangement. 

Undue Hardship

Title VII does not require an employer provide an accommodation to a workplace COVID-19 vaccine requirement if doing so would impose an “undue hardship” on the employer’s operations. 

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. The EEOC guidance states that “[c]osts 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.” An undue hardship exists under Title VII 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.” 

When assessing undue hardship, employers should consider “the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.” In this regard, when faced with an employee’s religious objection, an employer should rely on objective information rather than speculative hardships. Common considerations during the COVID-19 pandemic include “the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer),” and “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).” Employers may rely on recommendations from the Centers for Disease Control and Prevention (CDC) when deciding whether an effective accommodation is available that would not pose an undue hardship.

If you have any questions regarding the content of this alert, please contact Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; Rob Thorpe, partner, at rthorpe@barclaydamon.com; Sarah Capungan, associate, at rcapungan@barclaydamon.com; Payne Horning, law clerk, at phorning@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.
 

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