NEW EEOC Technical Assistance on Responding to Religious Objections to COVID-19 Vaccine Mandate
On October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) expanded its technical assistance regarding employment rights and obligations related to the COVID-19 pandemic. This expanded guidance focuses on Title VII of the Civil Rights Act of 1964 (“Title VII”) and religious objections to COVID-19 vaccine mandates. Here is a summary of the six new questions and answers contained in Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates of the EEOC’s technical assistance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (“Technical Assistance”).
Q L.1.: “Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII?”
A: Yes, the employee must inform the employer, but the employee does not have to use magic words, such as “Title VII” or “religious accommodation”, to request a religious accommodation exception to the COVID-19 vaccine requirement.
The employee must only notify the employer that the request for an exception is due to a conflict between the employee’s sincerely held religious beliefs, practices or observances and the employer’s COVID-19 vaccination requirement.
Employers should, as a best practice, provide to employees and applicants information about the employer’s procedures for requesting religious accommodation.
Q L.2.: “Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information?”
A: “Generally, under Title VII, an employer should assume that a request for accommodation is based on sincerely held religious beliefs. ... The sincerity of an employee’s stated religious beliefs also is not usually in dispute.”
Nontraditional beliefs are included in the definition of “religion” under Title VII. See EEOC Compliance Manual on Religious Discrimination; Section 12-I.A.1.: Religious Discrimination (definition of religion) However, “Title VII does not protect social, political, or economic views, or personal preferences.” Thus, objections to vaccination requirements that are based on purely social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs” under Title VII.
If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer is justified in making a limited factual inquiry and seeking additional supporting information. “An employer may also ask for an explanation as to how the employee’s religious belief conflicts with the employer’s vaccination requirement.”
· Factors that might undermine an employee’s credibility include:
o whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
o whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
o 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,
o whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
· “No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.”
An employee must participate in the interactive dialogue when an employer makes a factual inquiry, seeking additional supporting information. If an employee fails to cooperate, the employee “risks losing any subsequent claim that the employer improperly denied an accommodation.”
Q L.3.: “How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation?”
A: “In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.”
To assess undue hardship, an employer must consider “the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve” and should consider all possible alternative reasonable accommodations.
· This assessment must be objective, not speculative, and commonly includes, for example:
o Whether the employee works indoors or outdoors;
o Whether the employee works in a group setting or alone;
o Whether the employee comes into close contact with other employees or members of the public; and,
o While an assumption that many more employees may seek an accommodation in the future is not evidence of undue hardship, the employer may take into account the cumulative cost/burden of granting accommodation to other employees.
“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. 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 instance, the risk of the spread of COVID-19 to other employees or to the public.”
Q L.4.: “If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs?”
A: No, the determination of whether a request for an accommodation imposes an undue hardship on the conduct of the employer’s business is factually specific.
Q L.5.: “Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII?”
A: No, if there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the employee’s sincerely held religious belief, practice, or observance without imposing undue hardship, the employer should consider the employee’s preference but it is not obligated to provide the reasonable accommodation preferred by the employee.
If the employer denies the employee’s preferred accommodation, the employer should explain why the preferred accommodation is not being granted.
Q L.6.: “If an employer grants a religious accommodation to an employee, can the employer later reconsider it?”
A: Yes, the obligation to provide an accommodation absent undue hardship is a continuing obligation.
Just as employees’ religious beliefs may change over time and result in requests for additional/different accommodations, “an employer has the right to discontinue a previously granted accommodation if it no longer is utilized for religious purposes” or imposes undue hardship on the employer’s operations due to changed circumstances.
Before revoking an approved accommodation, as best practice, an employer should discuss any concerns with the employee and consider whether there are alternative accommodations that would not impose an undue hardship.
