Updated EEOC Guidance Discusses Religious-Based COVID-19 Vaccination Exceptions

In updated technical assistance (see new section “L” here), the EEOC addressed questions about religious exceptions to employers’ COVID-19 vaccination requirements and how they interact with federal equal employment opportunity laws, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibit employment discrimination based on religion, among other things.

Informing Employers About Sincerely-Held Religious Beliefs

The EEOC notes that employees must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious beliefs, practices, or observances (“religious beliefs”).  Employees  requesting a “religious accommodation” do not need to use any “magic words.” Employers must therefore consider all requests—even if generically worded—so long as they are on notice of a potential need for accommodation. To assist employees in making requests, the EEOC encourages employers to provide information to employees and applicants about how to initiate a religious accommodation request and who to contact. The EEOC’s sample religious accommodation request form is available here

The new guidance notes that the same principles apply if employees or applicants have a religious issue with receiving a particular COVID-19 vaccine and wish to wait until an alternative is available.

Personal Preferences or Views Not Covered

According to the EEOC, an employer must generally assume that a request for religious accommodation is based on sincerely held religious beliefs. The EEOC also reminds employers that Title VII protects nontraditional religious beliefs that may be unfamiliar. While the EEOC cautions against assuming that a request is invalid because it is based on unfamiliar religious beliefs, it also makes clear that Title VII does not protect social, political, or economic views, or personal preferences. Objections to COVID-19 vaccination on these grounds do not qualify as “religious beliefs” under Title VII.   

Where an employer has an objective basis for questioning the nature or sincerity of a particular religious belief, the EEOC notes that an employer may make a “limited factual inquiry” seeking additional information. Although the updated guidance does not define the allowable limited factual inquiry, it does provide examples: for instance, where an employee requests a schedule change to accommodate daily prayers, an employer may seek additional information, such as the time and duration of the daily prayers, in order to determine if the accommodation can be made without posing an “undue hardship” on the employer’s operations.  

While the guidance notes employers should not ordinarily dispute the sincerity of an employee’s religious beliefs, employers may use the following factors to examine the credibility of a religious-based exemption request:

  • whether the employee has acted inconsistently with the professed belief;
    • while prior inconsistent conduct is relevant to the “sincerity” of a belief, an individual’s beliefs or degree of adherence may change over time. Thus, the EEOC warns that employers should not assume an employee is insincere simply because some of the employee’s practices deviate from commonly followed religious tenets, or because the employee adheres to some practices but not others.

  • whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;

  • whether the timing of the request is suspect (e.g., it follows an earlier request by for the same benefit for secular reasons); and/or

  • whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The new guidance emphasizes that no one factor above is determinative, so employers must conduct a case-by-case analysis of each exemption request.

Undue Hardship

Once an employee establishes a sincerely held religious belief requiring exemption from an employer’s vaccine requirement, the burden shifts to the employer to either grant an accommodation or show that an accommodation poses an “undue hardship.” According to the EEOC, an employer must consider all possible reasonable accommodations, including telework and reassignment, during a good faith interactive discussion with an employee. However, where an employer can show it is unable to accommodate an employee’s religious belief without “undue hardship” on its operations, then Title VII does not require the accommodation. Under federal law, undue hardship is defined as requiring an employer to bear more than a “de minimis” cost to accommodate an employee’s religious belief. 

“Cost,” according to the EEOC, includes both monetary costs as well as burdens of conducting ongoing business (such as the risk of spreading COVID-19 to employees, clients or visitors). Thus, an employer assessing whether exempting an employee from a vaccine mandate would impair workplace safety should consider various factors, including:

  • the type of workplace (e.g., whether employees perform work indoors or outdoors);
  • the nature of the employee’s duties;
  • the number of employees who are fully vaccinated;
  • the number of employees and nonemployees who physically enter the workplace; and
  • the number of employees who will in fact need a particular accommodation.

The EEOC notes that an employer must base undue hardship assertions on objective information as opposed to speculation (i.e., burdens that may occur).

What should employers do now?

  • Put in place a formal process for employees to make requests for religious accommodations and communicate that process in writing to employees.

  •  Consider all accommodation requests based on religious grounds, regardless of whether the requests includes legally recognized terms or specific language.

  • Engage in a meaningful and well-documented interactive process with employees to determine potential religious accommodations.

  • Assess objective business conditions and workplace criteria to determine the existence of an undue hardship.

  • Consider other federal, state or local laws regarding COVID-19 workplace restrictions as well as reasonable accommodations for religious beliefs.

  • For example, under California law “undue hardship” is defined as a “significant difficulty or expense” as opposed to the federal standard discussed above. 
  • Certain states, such as Rhode Island and Maine allow only a medical exemption (and not faith-based exemptions) for refusing vaccination. 
  • New York was also amongst the states that did not have a religion-based exemption, although a federal judge recently ordered that the state must allow religious exemptions from its COVID-19 vaccine mandate for healthcare workers.[1]

  • Keep in mind that an employer does not have to provide reasonable accommodations for religious beliefs where accommodations would prevent an employee from performing the essential functions of the employee’s position

If you have any questions about the EEOC’s updated technical assistance, navigating the interactive process in response to requests for exemptions from employer instituted COVID-19

[1] The U.S. Supreme Court has chosen to remain silent in connection with this issue and recently turned down a request from a group of Maine health-care workers to block a state COVID-19 vaccination mandate that does not contain an exception for religious objectors.

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