Frequently Asked Questions on Religious Objections to Employer Mandates on COVID-19 Vaccines | Perkins Coie

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidelines for the COVID-19 pandemic, adding a brand new section dealing with religious objections to COVID-19 vaccine mandates.

Since the United States Food and Drug Administration (FDA) approved the use of three COVID-19 vaccines for emergency use authorizations in April 2021, many public and private employers have announced and / or implemented compulsory vaccination policies. Additionally, on September 9, 2021, President Biden signed an executive order requiring certain federal contractors to agree to contract terms that effectively mandate the vaccination of their covered workers and ordered the Occupational Safety and Health Administration (OSHA) to put implementing a rule that would require employers with 100 or more employees to mandate weekly vaccination and / or testing for COVID-19. The OSHA rule is expected to be published shortly.

Employers implementing mandatory vaccination policies (either by company decision or in accordance with government requirements) have found themselves with questions about how to properly handle employee requests to accommodate these policies due to religious beliefs, practices and observances. The EEOC update provides much needed advice.

1. Why do employers have to adapt to religious beliefs?

Title VII of the Civil Rights Act 1964 and similar state laws prohibit discrimination in employment based on religion, which includes all aspects of religious beliefs, practices or observances. These laws require an employer to consider an employee’s or applicant’s request for an exception, known as religious or reasonable accommodation, to an employer’s requirement that conflicts with their sincere religious beliefs, practices or observances. . Employers must reasonably accommodate the sincere religious beliefs, practices or observances of employees, unless providing the accommodation causes undue hardship.

2. How do employers recognize a request for religious accommodation?

Employees must notify their employer if they request religious accommodation based on a COVID-19 vaccination requirement. While employees do not need to use specific words such as “religious accommodation,” they should inform the employer that their immunization requirements conflict with their sincere religious beliefs. Employers should educate employees and applicants on how to request religious accommodation. An employee who simply says he does not wish to be vaccinated, without providing a reason, is unlikely to inform the employer of the need for the employee for religious accommodation.

3. How should employers respond to a request for religious accommodation?

Courts interpreting Title VII do not require employers to provide an exception to the vaccination requirement as a religious accommodation unless: (1) the employee’s belief, practice or observance either of a religious nature; (2) the belief conflicts with the vaccination requirement; (3) the belief is sincere; and (4) the employee does not seek an accommodation that imposes undue hardship. Employers should assess requests for religious accommodation on an individual basis to determine if these four factors are met.

The EEOC advises employers to “assume that a request for religious accommodation is based on sincere religious beliefs. However, if an employer has an objective basis for questioning the religious nature or sincerity of a particular belief, employers would be justified in making limited factual investigation and seeking additional supporting information. Employers with an objective basis for doing so may ask employees to explain the nature of their religious beliefs and may inquire about the sincerity of their religious beliefs. The EEOC provided its own form as an example of an appropriate employer’s investigation into the nature of religious belief. Employees who do not cooperate with an employer’s reasonable request for verification risk losing any subsequent claim that the employer has improperly denied accommodation.

Step 1: Is the request based on a “religious belief, practice or observance”?

Religious beliefs generally concern ultimate ideas about life, purpose and death, humanity’s place in the universe, or good and evil, and reflect a system of moral or ethical beliefs. Religion includes not only traditional and organized religions, but also religious beliefs that are not part of a formal church or sect or that are new or rare. An employee’s belief, observance or practice may be religious under Title VII even if no other person adheres to it (one person’s religion) and even if it seems illogical or unreasonable to others. Employers should therefore not assume that a belief is not religious in nature because they do not know the religion or believe it to be illogical.

Religious beliefs differ from personal, social, political or economic beliefs, which are not protected by Title VII. For example, just being passionate about something is not enough to give it the status of a religion in someone’s life. If an employee objects to a COVID-19 vaccination based on “social, political or personal preferences, or non-religious concerns about the possible effects of the vaccine,” then the employer is not obligated to provide accommodation. religious because these objections do not qualify as “religious beliefs” under Title VII. For example, an employee professing fear of being vaccinated against COVID-19 because the employee thinks the tests were rushed is probably insufficient to be considered a religious belief.

Step 2: Does religious belief conflict with the vaccination requirement?

An employee’s religious belief must in fact conflict with the employer’s vaccination requirement. Employers should assess whether there is a conflict and may ask employees to explain how their religious belief conflicts with the employer’s vaccination requirement if it is unclear. If there is no conflict, the employer is not obligated to provide accommodation for this reason.

Step 3: Is the Religious Belief “Sincerely Held”?

The EEOC said that an employee’s sincerity is generally not in dispute and should be presumed, but, assuming an employer has objective evidence to investigate further, determining sincerity is largely a matter of credibility. of the employee. To determine credibility, employers should conduct an individualized assessment and may consider some or all of the following factors:

  • If the employee has acted in a manner inconsistent with the professed belief (although employees do not need to follow all the principles of the religion in their observance);
  • If the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons;
  • If 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.

No factor is decisive. For example, the EEOC warns that while past consistent conduct is relevant, as an employee’s religious beliefs and the degree to which those beliefs are adhered to may change over time, “newly adopted or observed practices of inconsistently by an employee may nevertheless be sincerely detained ”. Employers should not assume that employees who do not follow all the tenets of a religion do not have sincere religious beliefs.

Step 4: Does the requested accommodation create undue hardship?

If an employee’s request for religious accommodation meets Steps 1 through 3, employers must reasonably accommodate the employee unless it causes undue hardship.

The EEOC notes that “the Supreme Court has ruled that requiring an employer to bear more than a ‘de minimis’ or minimal cost to accommodate an employee’s religious belief is undue hardship. Although the undue hardship standard under Title VII is a lower threshold than that under the American with Disabilities Act (ADA), employers should be aware that there is little case law interpreting the standard. Employers must rely on and document objective information demonstrating undue hardship, and the EEOC reminds employers that they cannot rely on speculative or potential charges.

When performing an undue hardship analysis, employers may consider:

  • Direct monetary costs;
  • The burden on the employer’s business, including the risk of the spread of COVID-19 to other employees and the public, and whether the religious accommodation “would undermine workplace safety”;
  • The nature of the employee’s duties, including whether religious accommodation would reduce efficiency in other jobs, or require co-workers to take on the accommodated employee’s share of potentially dangerous or arduous work ”;
  • The type of workplace, including “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) ”;
  • Labor, including the number of employees looking for similar specific accommodation (i.e.; and
  • CDC Recommendations.

Before denying an accommodation request due to undue hardship, employers should consider other possible accommodations, including telecommuting and reassignment. The EEOC cautions employers that in “many circumstances” it may be possible to accommodate religious beliefs without imposing undue hardship. An employer is not required to provide an employee’s preferred accommodation if other accommodations are effective in eliminating the religious conflict, but should consider the employee’s preference and explain to the employee why the preferred accommodation is not granted.

4. Can employers reconsider religious accommodations?

Under the EEOC guidelines, an employer may reconsider religious accommodations in light of changing circumstances, such as an employee’s altered religious beliefs and practices or the accommodation poses undue hardship due to changes in circumstances. employer’s activities. Before terminating a religious accommodation, employers should engage in an interactive process with the employee to determine if there is another accommodation available that would not pose undue hardship.

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The EEOC guidelines constitute its interpretation of Title VII, but other federal, state, and local laws may impose additional requirements or define “undue hardship” differently. Employers who have questions about religious accommodations and COVID-19 vaccination requirements should consult an experienced lawyer.

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John McTaggart

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