EEOC Issues Guidance on Religious Accommodations to COVID-19 Vaccine Mandates
As addressed in our prior client alerts, available here and here, earlier this year, the Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers regarding how employer-imposed COVID-19 vaccine mandates interact with federal anti-discrimination laws. Last week, the EEOC issued additional guidance on employee requests for religious accommodations to these mandates.
Title VII of the Civil Rights Act requires employers to grant applicants and employees religious accommodations to employment requirements that conflict with their religious beliefs, practices, or observances, unless the accommodation would result in an undue hardship on the employer’s operations. Although employers are required to also consider requests for accommodations for reasons related to a disability, medical contraindication, or pregnancy, as more employers are instituting mandatory COVID-19 vaccination policies (either due to legal mandates or business reasons), more employees are requesting religious accommodations to vaccine mandates. The EEOC’s recent guidance focuses on how employers should manage these religious-based requests. The guidance largely tracks existing legal principles regarding religious accommodations in the workplace, but offers some insight as to how those principles apply in the context of employer vaccine mandates, while leaving many significant questions unanswered.
Requesting a Religious Accommodation
Employees must request a religious accommodation; employers are not assumed to know an accommodation may be needed. Specifically, an employee must tell their employer they are requesting an exemption to a COVID-19 vaccination requirement because of a conflict between the vaccine requirement and their sincerely held religious beliefs, practices, or observances. However, employees do not need to use any magic words (e.g., religious accommodation or Title VII) as part of their request. Rather, an employee must notify the employer that there is a conflict between their religious beliefs and the COVID-19 vaccination requirement. Then, if not otherwise clear from the request, the employer may ask for an explanation of how the employee’s religious beliefs conflict with the employer’s COVID-19 vaccination requirement.
Employers may elect to develop a reasonable accommodation request form, and the guidance includes the request form that the EEOC uses for its own employees. Among other items, the form asks the employee to describe the nature of the employee’s sincerely held religious beliefs, practices, or observance that conflict with the applicable requirement and to list requested, and alternate, accommodations.
The guidance also notes that employees may request a reasonable accommodation if they have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of the COVID-19 vaccine is available.
Evaluating Requests for Religious Accommodation
Employees are only entitled to a religious accommodation if the employment requirement conflicts with an employee’s sincerely held religious belief. While typically the religious nature of an employee’s belief, and the sincerity of that belief, are not in question, the guidance does confirm that if an employer has an objective basis for questioning either the religious nature or the sincerity of an employee’s particular belief, the employer can make a “limited factual inquiry” and seek additional supporting information. Importantly, an employee who fails to cooperate with an employer’s reasonable request for such information may be precluded from later claiming that the employer failed to provide a religious accommodation.
The guidance provides the following considerations for evaluating a religious accommodation request. Note that no one consideration is determinative, and employers should evaluate religious accommodation requests on an individualized basis:
Employers may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.
When evaluating whether an employee’s beliefs are religious, employers must remember that religion is defined broadly and includes “nontraditional” religious beliefs that may be unfamiliar to employers. However, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.
An individual’s beliefs – or degree of adherence – may change over time, so an employee’s newly adopted or inconsistently observed practices may nonetheless be sincerely held. In addition, 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.
Objections to the COVID-19 vaccine 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, and are insufficient to support an accommodation request. The guidance does not, however, provide any additional instruction as to how employers should analyze requests which may contain both elements of religion and political or personal preference.
The employee’s sincerity in holding a religious belief is largely a matter of individual credibility. Factors that might undermine an employee’s 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 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.
Demonstrating Undue Hardship
An employer is not required to grant a religious accommodation if the accommodation would create an undue hardship on the employer. The determination of whether a proposed accommodation imposes an undue hardship depends on the specific factual context. As such, an employer that grants some employees a religious accommodation to a COVID-19 vaccination requirement is not required to grant all requests for a religious accommodation to the vaccination requirement. The guidance provides several factors to consider when assessing the potential burden of a religious accommodation to an employer’s COVID-19 vaccination requirement:
The burden on the employer’s business, including the risk of the spread of COVID-19 to other employees or to the public.
The nature of the employee’s work and workplace, including whether the employee (1) works outdoors or indoors; (2) works in a solitary or group-work setting; or (3) has close contact with other employees or members of the public (especially medically vulnerable individuals).
The number of employees who are fully vaccinated.
The number of employees who are seeking a similar accommodation and the resulting cumulative cost or burden on the employer. The guidance warns, however, that a mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue burden.
Under federal law, employers are not required to bear more than a “de minimis” cost to accommodate an employee’s religious belief. However, state and/or local law may require a more stringent standard for undue hardship, so employers should be cognizant of local requirements.
Designing the Accommodation
If there is more than one reasonable accommodation that would resolve the conflict between the employer’s vaccination requirement and the employee’s sincerely held religious belief, without causing an undue hardship, the employer may choose which accommodation to offer. The guidance states that employers may rely on CDC recommendations when evaluating an accommodation. The guidance also suggests that if the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.
In addition, employees’ religious beliefs and practices may evolve and change over time, so employees may request additional or different religious accommodations even after working under an accommodation for a period of time. 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 later poses an under hardship on the employer’s operations due to changing circumstances.
Employers should review their COVID-19 vaccination policies and reasonable accommodation policies and procedures for compliance with this new guidance. If you have any questions regarding implementation of a COVID-19 vaccination policy, please contact Amanda M. Baker at abaker@fglawllc.com or any attorney at the Firm.
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