United States: EEOC Updates Religious Accommodation and Vaccine Mandate Guidelines
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The EEOC has updated its technical guidance and responses in a document titled
What you need to know about COVID-19 and ADA, the Rehabilitation Act and other EEO laws. The updated guide adds six questions and answers based on religious accommodation in a new section L (Vaccinations – Title VII and religious objections to COVID-19 vaccination mandates).The updated guidance does not necessarily innovate in this area; instead, it primarily reinforces several pre-existing concepts, including (i) how employers should analyze the religious nature and sincerity of an employee’s beliefs; (ii) what could constitute âundue hardshipâ; and (iii) the need for employers to analyze each accommodation request on a case-by-case basis. We break down the updated guidelines further below.
Employees do not need to use “magic words” to request accommodation.
This is not new under applicable accommodation legislation, including religious and disability-based accommodations. As part of this, the guidelines point to a scenario in which an employee may report to the employer a religious conflict with “obtaining a particular vaccine” and the “employee’s wish to wait for an alternate version or a specific brand of COVID-19 vaccine is available. “In this case, the employer should treat this as a request for accommodation and proceed accordingly. This guide reaffirms that employers should consider creating an accommodation process whereby employees are made aware of the existence of the policy. employer accommodation and how to use the exemption request process, including who employees should direct requests to, when and what information to include. religious (and disabled) vaccine exemption and communicating this process to employees will help avoid any claim that an employer has never responded to an employee’s exemption request.
Employers should analyze certain factors when considering the sincerity or religious nature of a belief.
The updated guidelines, for the most part, follow the EEOC guidelines set out in
Section 12 of its Religious Discrimination Compliance Manual, which it last updated in January 2021. Specifically, the EEOC confirms that:
- Employers should generally âpresumeâ that a request is based on a sincere religious belief, unless it rests on an âobjective basisâ to question the âreligious nature or sincerity of a particular beliefâ, in which the employer can make a “limited factual finding” investigation and [seek] additional supporting information. “
- Religion includes “non-traditional religious beliefs” but does not protect “social, political or economic views or personal preferences” or “non-religious concerns about the possible effects of the vaccine”.
- Sincerity is “largely a matter of individual credibility”, and in analyzing an employee’s credibility, employers may, according to the EEOC, take into account – alone or in combination (although no factors are decisive. ) – factors such as:
- if the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in respecting them). However, in analyzing this factor, employers should: (i) note that an employee may genuinely hold a religious belief even though they have changed their beliefs or the degree of adherence to their beliefs over time; and (ii) not presumea belief is not sincere “simply because some of the employee’s practices deviate from commonly followed principles of the employee’s religion, or because the employee adheres to some common practices but not others “.
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons;
- whether the timing of the request makes it suspicious (for example, it follows a previous request by the employee for the same benefit for secular reasons); and
- if the employer has reason to believe that the accommodation is not sought for religious reasons.
Employers can reject an accommodation request when certain safety concerns exist.
While the EEOC encourages employers to “thoroughly examine all possible reasonable accommodations, including telecommuting and reassignment,” it recognizes that an employer does not need to provide an accommodation, despite the existence of sincere religious belief, when “undue hardship” exists in its operations. Here, the EEOC upheld the application of the Supreme Court’s “de minimis” standard – that is, undue hardship can exist when employers have to bear more than a “de minimis” or a minimum cost to take into account religious belief. The EEOC further noted that:
- “Costs to be taken into account [as part of the undue hardship
analysis] include not only the 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 the public,“and the cases referred to where such accommodation”compromise workplace safety, reduce efficiency in other jobs, or force co-workers to take on the adapted employee’s share of potentially dangerous or strenuous work“(emphasis added). He again refers readers to his
Compliance Manual about this question.
- Employers should carry out this undue hardship assessment âtaking into account the particular facts of each situation and will have to demonstrate the costs or disruptions that the accommodation proposed by the employee would involveâ. Relevant factors related to the pandemic include:
- whether the employee requesting 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 people); and
- the number of employees seeking a similar accommodation (i.e. cumulative cost or burden to the employer).
- The EEOC also noted that in this security environment, employers could find themselves in a situation where they make accommodations for some, but not others, despite the same sincere religious belief. Again, the EEOC stated that the existence of undue hardship “depends on its specific factual context” and provided additional factors to consider: “the type of workplace, the nature of the duties number of employees, the number of employees who are fully immunized, how many employees and non-employees physically enter the workplace, and the number of employees who will actually require special accommodation. But the EEOC also noted that a “mere assumption that many more employees might seek religious accommodation to the vaccination requirement in the future is not evidence of undue hardship,” [though] the employer may consider the cumulative cost or burden of providing accommodations to other employees. “
The need for and use of religious accommodations may change over time.
Just as employee beliefs can change over time and give rise to a new accommodation request, an employer can also reverse their decision to revoke an accommodation previously provided to an employee who no longer uses the accommodation at other times. religious purposes or when such accommodation âsubsequently places undue hardship on the employer’s operations due to new circumstances. In the latter case, the EEOC encourages employers to discuss the potential revocation of the accommodation with the employee and explore any “alternative accommodation that would not impose undue hardship.”
Understanding COVID-19 vaccine accommodation considerations is more important than ever. Employers are well advised to contact their attorney when designing and implementing their vaccine accommodation policies and when reviewing specific employee accommodation requests.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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