EEOC Issues New Guidelines Regarding Objections to COVID-19 Vaccines Based on Employees’ Religious Beliefs | Sheppard Mullin Richter & Hampton LLP

On October 25, 2021, the Equal Employment Opportunities Commission (EEOC) extended its previous guidelines “What you need to know about COVID-19 and ADA, the rehabilitation law and others. EEO laws ”to include recommendations for employers who receive religious objections from employees in response to the employer’s mandatory COVID-19 vaccination policy. Specifically, the EEOC added Section L to its previous guidelines, which addresses specific issues relating to religious objections. The newly added questions are shown below. All employers should review and familiarize themselves with these guidelines as they continue to deal with employee objections and accommodation requests regarding COVID-19 vaccination mandates.

Should employees who have a religious objection to receiving a COVID-19 vaccination notify their employer? If so, is there specific language that must be used under Title VII?

According to EEOC guidelines, employees must notify their employer that they are requesting an exception to a COVID-19 vaccination requirement. While there are no “magic words” that employees should use, they should inform their employer that there is a conflict between their sincere religious belief and the employer’s vaccination requirement.

The EEOC recommends that employers provide employees and applicants with information on who to contact and any procedures to follow to request religious accommodation.

As a good practice, an employer should provide employees and applicants with information about who to contact and the procedures (if any) to use to request religious accommodation.

Should an employer accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? Can the employer request additional information?

The guidelines state that employers should assume that a request for religious accommodation is based on sincere religious belief. However, if an employer has an objective basis for questioning the religious nature or sincerity of a particular belief, the employer may make a limited factual investigation and request additional supporting information, including requesting an explanation of how the employee’s religious beliefs conflict with the employer’s COVID-19 vaccination requirement.

The EEOC notes that Title VII protects non-traditional religious beliefs that may not be familiar to employers. Employers should not assume that an employee’s claim is invalid simply because it is based on an unknown religious belief. Employees may be asked to explain the religious nature of their belief. However, Title VII does not protect social, political or economic opinions, or personal preferences.

The sincerity of an employee’s stated religious beliefs is generally not in dispute, as the employee’s sincerity in having a religious belief is “largely a matter of individual credibility.” The guidelines provide the following factors which – alone or in combination – could undermine an employee’s credibility: (1) whether the employee has acted in a manner inconsistent with the professed belief (although employees do not need to ‘be scrupulous in respecting them); (2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons; (3) whether the timing of the request makes it suspect; and (4) the employer has other reasons to believe that the accommodation is not sought for religious reasons. No factor or consideration is decisive.

How does an employer demonstrate that it would be “undue hardship” to respond to an employee’s request for religious accommodation?

Title VII does not require an employer to provide religious accommodation if it demonstrates that it is unable to reasonably accommodate an employee’s religious belief without “undue hardship” on its operations. 42 USC § 2000e (j). The Supreme Court has ruled that requiring an employer to pay more than a “de minimis” or minimal cost to accommodate an employee’s religious beliefs constitutes 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 case, the risk of spreading COVID-19 to other employees or to the public. Undue hardship may include circumstances in which religious accommodation would compromise workplace safety, reduce efficiency in other jobs, or force co-workers to take on the accommodated employee’s share of potentially dangerous or arduous work.

Employers will need to assess undue hardship on a case-by-case basis. In addition, employers will have to demonstrate the costs or disruptions caused by the accommodation measures proposed by the employee. Employers should trust objective information and should not rely on speculative difficulties when dealing with an employee’s religious objection. Relevant considerations include, for example: whether the employee requesting religious accommodation to a COVID-19 vaccination requirement is working outdoors or indoors; works in a solitary or group setting; has close contact with other employees or members of the public (especially medically vulnerable people); and the number of employees seeking a similar accommodation (ie cumulative cost or burden to the employer).

If an employer grants religious accommodation to certain employees following a COVID-19 vaccination requirement because of sincere religious beliefs, must they accede to the requests of all employees who seek accommodation because of sincere religious beliefs?

No. Employers should conduct an individualized investigation for each accommodation request received, as the determination of whether a proposed accommodation imposes undue hardship on the conduct of an employer’s business depends on its specific factual context.

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

No. If there is more than one reasonable accommodation that would eliminate the conflict between the vaccination requirement and sincere religious belief without causing undue hardship, the employer can choose which accommodation to offer. If the employer refuses the accommodation offered by the employee, the employer must provide an explanation to the employee as to the reasons why the preferred accommodation is not provided.

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

Employers can terminate previously granted accommodation if it is no longer used for religious purposes or if the accommodation provided subsequently places undue hardship on the employer’s activities due to changed circumstances. Before revoking an accommodation, the employer must discuss with the employee any concerns regarding the maintenance of the accommodation and determine if there are other accommodations that would not impose undue hardship.

It should also be noted that an employee’s religious beliefs and practices may evolve or change over time.

Practical takeaways for employers

  • Consider and assess EEOC guidelines and related issues when implementing a COVID-19 vaccination program to ensure that appropriate procedures and safeguards are in place to comply with ADA , Title VII and other federal and state laws. Be aware of state and local laws which may impose additional or different requirements.
  • Establish a process and protocol for involving employees in an interactive process if they cannot get immunized for religious or other reasons.
  • Update COVID-19 policies to reflect these new guidelines and your company’s COVID-19 vaccination program.

The legal landscape continues to evolve rapidly and there is a lack of clear authority or clear rules on implementation. This article is not intended to be a unique and unequivocal guide, but rather represents our interpretation of the current and general state of applicable law. This article does not address the potential impacts of the many other local, state, and federal ordinances that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability for disease. employee, family leave requirements, sick pay and other issues.

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John McTaggart

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