EEOC Issues Updated Guidance on Accommodating Employees’ Religious Objections to COVID-19 Vaccines

On March 1, 2022 the United States Equal Employment Opportunity Commission (the “EEOC”) issued new technical guidance (the “March 1 Guidance”) for employers on how to address an employee’s religious objection to COVID-19 vaccinations and requests for accommodations. The March 1 Guidance answers the following questions:

Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? 

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances. Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.”  However, they need to explain the conflict and the religious basis for it.

Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other non-religious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. Employers must consider whether there are alternative accommodations that would not impose an undue hardship.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.

Does an employer have to accept an employee’s assertion at face value, or may the employer ask for additional information? 

Per the EEOC, and generally, under Title VII, an employer should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs, practices or observances. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.

The EEOC also advised that an employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice or observance risks losing any subsequent claim that the employer improperly denied an accommodation.

In prior guidance, the EEOC identified the following factors that might undermine the credibility of an employee’s claim:

  • The employee has acted inconsistently with the professed belief. However, per the EEOC, employees need not be scrupulous in their observance.
  • The employee is seeking a “particularly desirable” accommodation that is likely to be sought for nonreligious reasons.
  • The timing of the request is suspicious. For example, the employee may have recently requested the same benefit for secular reasons and been denied.
  • The employer otherwise has reason to believe the accommodation is not sought for religious reasons.

While prior inconsistent conduct is relevant to determining the sincerity of an employee’s beliefs, the EEOC cautioned that an employee’s beliefs (and degree of adherence to such beliefs) may change over time.

Per the EEOC, an employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.

How does an employer show that accommodating an employee’s request would cause an undue hardship? 

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. 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.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief, practice, or observance without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. In prior cases, the United States Supreme Court 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 organization or business — including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative or hypothetical hardship when faced with an employee’s religious objection but, rather, should rely on objective information.

Finally, employers should also note that any guidance from the EEOC only covers those anti-discrimination laws it enforces. Employees may have additional legal protections under other federal laws, state laws, or local laws and ordinances.

Should you or your organization have any questions regarding the EEOC’s latest guidance or other employee matters please contact Chris Barrett in Barton Gilman’s Philadelphia office at cbarrett@bglaw.com or your Barton Gilman employment law attorney.