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EEOC Issues Guidance On Religious Exemptions to COVID-19 Vaccine Requirements

Submitted by Firm:
Shawe Rosenthal LLP
Firm Contacts:
Gary L. Simpler, Parker E. Thoeni
Article Type:
Legal Update

On October 25, 2021, the Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address religious objections to COVID-19 vaccine mandates. In a new section to the guidance, the EEOC draws upon previously-existing guidance for religious exemptions generally. While there are no real surprises, the collection of information in the guidance document is helpful.

Employees Must Explain Their Religious Belief. The EEOC states that employees must make a request for reasonable accommodation under Title VII. Although no “magic words” are required, they must inform their employers if they are requesting an exemption from the COVID-19 vaccines, whether generally or to a specific vaccine, due to a conflict between their religious belief and a vaccination mandate.

The EEOC suggests that, as a best practice, employers provide employees and applicants with a contact person and information about the procedures for submitting a request for religious accommodation.

Employers Can Ask For Additional Information Under Certain Circumstances. Generally, an employer should assume that an accommodation request is based on sincerely held religious beliefs. If they have an objective basis for questioning either the religious nature or sincerity of the belief, however, they may seek supporting information, which an employee is required to provide.

The EEOC notes that “religion” under Title VII includes non-traditional beliefs, which employers should not assume to be invalid. Moreover, employers should not assume that the belief is not sincere because the employee’s belief deviates from commonly-followed tenets of their organized religion, or because they adhere to some practices but not others. The EEOC further cautions that religious beliefs may change over time such that newly adopted or inconsistent practices may still be sincere.

On the other hand, Title VII does not protect social, political or personal preferences, or “nonreligious concerns about the possible effects of the vaccine,” and no accommodation is required for these non-religious beliefs.

Employers may require employees to explain the religious nature of the belief, and to explain how it conflicts with the vaccine mandate. The sincerity of the employee’s belief will turn on their credibility, which must be assessed on an individualized basis. The EEOC identifies factors that “might undermine an employee’s credibility” as including the following:

  • whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
  • whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
  • 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
  • whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Employers Need Not Provide an Accommodation That Is an Undue Hardship. Assuming that the religious belief is sincere, the EEOC reminds employers to consider all possible reasonable accommodations, including telework and reassignment. It also notes that the Job Accommodation Network (JAN) website provides resources for different accommodations.

If, however, the reasonable accommodation poses an undue hardship – meaning a significant difficulty or expense – on the employer’s operations, no accommodation is required. Under Title VII (but NOT under the Americans with Disabilities Act), more than a de minimis (i.e. minimal) cost is considered an undue hardship. This includes direct monetary costs, as well as other burdens on the employer’s business, specifically including “the risk of the spread of COVID-19 to other employees or to the public.” The EEOC notes that courts have found undue hardship where the accommodation would impair workplace safety, diminish efficiency in other jobs, or require co-workers to take on additional potentially hazardous or burdensome work.

Whether there is an undue hardship must be assessed on a case-by-case basis and cannot be speculative. The EEOC has identified certain “common and relevant considerations during the COVID-19 pandemic” to include:

  • whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors,
  • whether they work in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals), and
  • the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

The Specific Circumstances Matter. The EEOC reiterates that the determination of whether an accommodation poses an undue hardship depends on the specific factual context. With regard to workplace safety, employers may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.

The Employer Gets to Choose the Accommodation. The EEOC reminds employers to consider “all possible alternatives” when assessing whether there is an undue hardship. If more than one reasonable accommodation is available, the employer has the ability to choose which one will be used. Although the EEOC states that the employer should consider the employee’s preference, it also acknowledges that the employer is not obligated to honor that preference as long as the proffered accommodation is effective. The employer should explain, however, why the preferred accommodation is not being granted.

Accommodations Are Not Set in Stone. The EEOC states that the religious accommodation obligation takes into account changing circumstances. On the employee side, their religious beliefs and practices may evolve or change over time, resulting in requests for different or additional accommodations. On the employer side, an accommodation may be discontinued if it is no longer being utilized for a religious purpose or if it ends up posing an undue hardship. The EEOC suggests that a best practice would be for the employer to discuss concerns about the accommodation before revoking it, and to explore other possible accommodations.

This is obviously a fast-moving and ever-changing situation, and we will continue to send out E-lerts and blog posts on any significant developments. You may also wish to check our FAQs.