United States: EEOC Clarifies Religious Exemptions To Covid-19 Vaccine Mandates

On October 25, 2021, the U.S. Equal Employment Opportunity Commission ("EEOC") revised its ongoing Covid-19 technical guidance ("Guidance") to clarify how employers should address issues involving requests for religious accommodations related to Covid-19 vaccine mandates.¹

REASONABLE RELIGIOUS ACCOMMODATIONS UNDER TITLE VII

Under Title VII of the Civil Rights Act of 1964 ("Title VII"), qualifying employers must reasonably accommodate an employee or applicant who requests to be exempted from a company rule or policy that conflicts with their sincerely held religious beliefs, practices, or observances - provided that the request does not pose an undue burden to the employer. Such reasonable accommodations have included deviation from company dress codes, time off for religious holidays and Sabbath observance, and adjustments to the type of work the employee is asked to perform.

INITIATION OF THE RELIGIOUS ACCOMMODATION PROCESS

The updated EEOC Guidance instructs that employees seeking a religious accommodation for an exception to an employer's Covid-19 vaccination requirement must speak up and tell their employer they cannot be vaccinated because of their religious beliefs. Similar to disability accommodation requests, the Guidance provides that there are no "magic words" the employee needs to use, such as "I need a religious accommodation" or "I demand my rights under Title VII." Finally, the Guidance states that as a best practice, the employer should tell employees who they should contact to request a religious accommodation.

VERIFYING THE EMPLOYEE'S RELIGIOUS BELIEFS

The Guidance provides that an employer generally should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, the Guidance allows an employer to make a limited factual inquiry and to seek additional supporting information if an objective basis exists for questioning either the religious nature or the sincerity of a particular belief. The Guidance also explains that the law protects nontraditional religious beliefs that may be unfamiliar to employers, and a request is not invalid simply because it is based on unfamiliar religious beliefs. However, an employer may ask employees to explain the religious nature of their belief.

Importantly, the Guidance makes clear that Title VII does not protect social, political or economic views, or personal preferences, and therefore, objections to Covid-19 vaccination based on "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." Rather, where an employee's objection to a Covid-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide a religious accommodation.

The Guidance also instructs that the sincerity of an employee's religious beliefs usually is not in dispute, but may be challenged based on factors that undermine an employee's "credibility." The Guidance suggests that the following considerations may undermine the credibility of an employee's sincerity:

• The Guidance also instructs that the sincerity of an employee's religious beliefs usually is not in dispute, but may be challenged based on factors that undermine an employee's "credibility." The Guidance suggests that the following considerations may undermine the credibility of an employee's sincerity:
• 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., when it follows an earlier request by the same 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.

The Guidance also cautions that although inconsistent conduct may be relevant to sincerity, religious beliefs and adherence to them may change over time. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

DETERMINING UNDUE HARDSHIP ON THE EMPLOYER

Title VII does not require an employer to provide the accommodation where the employer can demonstrate that it is unable to reasonably accommodate an employee's religious belief without an "undue hardship" on its operations. "Undue hardship" requires more than a showing of minimal cost or inconvenience to the employer. The Guidance provides that costs to consider include the burden on and risk to the employer's business - including, in this instance, the risk of the spread of Covid-19 to other employees, as well as direct monetary costs to the employer. Undue hardship has been upheld where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee's share of potentially hazardous or burdensome work.

When determining undue hardship, the Guidance explains that employers must consider the particular facts of each situation and must show how much cost or disruption the employee's proposed accommodation would involve. Employers must rely on "objective information" and not on "speculative hardships." The Guidance provides examples for consideration, such as:

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

Addressing the nature of "cumulative cost or burden," the Guidance explains that an employer may consider 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 need a particular accommodation. An employer cannot deny a religious accommodation because it assumes many more employees might seek one in the future, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

Finally, the Guidance instructs that an employer consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. Employers may rely on recommendations by the Centers for Disease Control and Prevention ("CDC")² when deciding whether an effective accommodation is available that would not pose an undue hardship. Such examples may include remote work, testing as recommended by local, state or federal agencies, masks, social distancing, work reassignment, schedule changes, and changes to the physical work environment.

In considering virus testing options, the Guidance does not address who pays for the test itself or whether the time spent to get tested is compensable. For these issues, employers should consult with legal counsel regarding local, state and federal wage and hour laws and other laws that likely apply. For example, in some circumstances, the U.S. Department of Labor's guidance on the Fair Labor Standards Act suggests that employers must pay for all time spent undergoing tests that the employer requires.

CHOOSING THE REASONABLE ACCOMMODATION

The Guidance makes clear that the employer does not necessarily need to choose the employee's requested accommodation if other reasonable accommodations exist. However, the employer should explain to the employee why the requested accommodation is not being granted.

RECONSIDERATION OF A RELIGIOUS ACCOMMODATION

The Guidance provides that religious accommodation is a continuing obligation that must consider changing circumstances. For example, an employee's religious beliefs and practices may change over time and may result in requests for additional or different religious accommodations. Likewise, an employer has the right to withdraw a previously granted accommodation if it is no longer used for religious purposes, or if the accommodation later poses an undue hardship on the employer's operations due to changed circumstances.

As a best practice, the Guidance recommends that an employer discuss any concerns about continuing a religious accommodation with the employee before withdrawing it, and consider whether there are alternative accommodations that would not impose an undue hardship. Although the Guidance does not specifically address an employer's reasonable accommodation process, employers would be well-advised to create a system to document the reasonable accommodation process to demonstrate that they engaged in a good-faith, interactive process to determine a reasonable accommodation.

FINAL THOUGHTS

Covid-19 vaccine mandates will continue to create front and center issues for employers to address now and into the foreseeable future. Although the EEOC's updated technical guidance now answers some of the most pressing questions regarding vaccine mandates and accommodation, it does not answer them all. Also, as the EEOC Guidance refers to CDC recommendations for examples of acceptable accommodation options for unvaccinated persons, employers should regularly revisit this CDC guidance and should consider adjusting accommodations to meet CDC recommendations.

Employers also should be aware of state and local laws that may impose additional requirements on employers or provide greater employee protections than under Title VII. For example, New York City requires employers to provide a written determination in response to an employee's request for accommodation due to a sincerely held religious belief.

Finally, employers should be on the lookout for additional regulations or guidance regarding Covid-19 vaccinations, and adjust their vaccine policy or program accordingly. For example, the highly anticipated Emergency Temporary Standard (ETS) is expected to be issued in the near future by the Occupational Safety and Health Administration ("OSHA").

This Alert is based on information available at the time of publishing. It is subject to change. Business leaders should consult with counsel and refer to government websites and publications for the most up-to-date information.

For more detailed analysis on a wide range of legal issues, please see Schnader's Covid-19 Resource Center at www.schnader.com/blog/covid-19-coronavirus-resource-center .  

This summary of legal issues is published for informational purposes only. It does not dispense legal advice or create an attorney-client relationship with those who read it. Readers should obtain professional legal advice before taking any legal action.

Footnotes

1. https://www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance-0  

2. https://www.cdc.gov/coronavirus/2019-ncov/  

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