Five Key Takeaways From EEOC’s Updated Guidance on Religious Objections to COVID-19 Vaccine Mandates

Many employers that require COVID-19 vaccinations of employees have been receiving requests for exceptions from the vaccine requirement as an accommodation based on religion. On October 25, 2021, the Equal Opportunity Commission (“EEOC”) updated its technical assistance guidance to address questions about religious objections to employer COVID-19 vaccination mandates. There are five key takeaways for employers in the updated guidance.

The Framework for Considering Reasonable Accommodations Based on Religious Beliefs

Title VII prohibits employment discrimination on the basis of religion. Employees and applicants have a right to request, as a reasonable accommodation, an exception to a workplace policy that conflicts with their sincerely held religious beliefs, practices, or observances.

Under Title VII, “religion” includes all aspects of religious observance, practice, and belief. As made clear by the EEOC guidance, the religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” While religious beliefs include theistic beliefs and “moral or ethical beliefs as to what is right and wrong,” they do not include social, political, or economic philosophies, or mere personal preferences.

According to prior EEOC guidance, whether an individual’s religious beliefs are “sincerely held” is not usually in dispute. Employers should ordinarily assume that an employee’s belief is “sincerely held,” unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief.

Employers are required to grant a reasonable accommodation based on religion unless doing so would be an undue hardship on the employer. If the employer cannot grant a reasonable accommodation without incurring an undue hardship, the employer is not required to grant the request. Based on the U.S. Supreme Court’s interpretation of Title VII, “undue hardship” is anything more than a minimal cost. That “cost” may include not only direct monetary costs, but also burdens on the employer’s operations.

While in many respects state law standards mirror those under Title VII, state law standards concerning employment discrimination, including the religious accommodation standards, can differ from the Title VII standards. Employers should consider any applicable state law standards as well as the Title VII standards in assessing religious accommodation requests.

Five Takeaways from the Updated EEOC Guidance

The updated guidance expands on the EEOC’s previous guidance concerning requests for exceptions to a mandatory vaccination policy based on a sincerely held religious belief, practice or observance. The EEOC’s previous guidance remains in place. There are five key takeaways for employers from the updated guidance.

1. Employers Should Proactively Inform Employees How to Request an Accommodation

Although an employee does not need to specifically reference Title VII or “religious accommodation” when making a request for an accommodation, the onus is on the employee to notify the employer that the employee objects to the mandatory vaccination requirement on the basis of a sincerely held religious belief. In its updated guidance, the EEOC states that an employer should, as a best practice, “provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.”

In light of this guidance, employers should modify their mandatory vaccination policies to include specific instructions to employees on how to request a reasonable accommodation, including whom they should contact and what, if any, forms or attestations need to be completed.

2. Employers May Assess Credibility When Evaluating Whether an Employee’s Religious Belief is “Sincerely Held”

While the EEOC reiterated its view that the sincerity of an employee’s belief is not usually in dispute, the EEOC acknowledged that an employee’s sincerity is “largely a matter of individual credibility.” The EEOC further states that certain factors, whether alone or in combination, might undermine an employee’s credibility, including:

• Whether the employee has acted in a manner inconsistent with the purported belief (although employees need not be scrupulous in their observance);
• Whether the accommodation sought is one that others may also desire such that it is likely to be sought for nonreligious reasons;
• Whether the timing of the request is suspicious (e.g., the employee first sought the accommodation for secular reasons, and after the request was denied, subsequently sought the request for religious reasons); and
• Whether the employer has reason to believe that the accommodation is not being sought for religious reasons.

The EEOC noted that if an employer relies on past inconsistency to question sincerity, the employer should be cognizant that beliefs or adherence may change over time while being sincerely held. It further stated that deviation from some religious tenets or common practices does not necessarily mean that beliefs are not sincerely held. 

3. Employers Should Consider Objective Information in Assessing Whether a Requested Accommodation Would Impose an Undue Hardship

It is well established that an employer need only show more than a minimal cost or burden to demonstrate that a proposed accommodation based on religion is an undue hardship. In the updated guidance, the EEOC identifies the risk of the spread of COVID-19 to other employees or members of the public as an example of a potential undue hardship. The EEOC emphasized, however, that the conclusion that a sufficient risk exists must be based on objective information.

For example, in some positions, employees must work in an office, laboratory or clinical setting, alongside colleagues and without the ability to social distance or isolate, while performing the essential functions of their position. For those positions, an employer may well be able to demonstrate that providing a reasonable accommodation would be an undue hardship because of the safety risk to the employee and the employee’s colleagues. In others, such as where there is an ability to have an employee isolate, there may not be objective information to support the existence of a sufficient risk.

4. Employers Should Refer to CDC Guidance When Considering Potential Reasonable Accommodations

The EEOC guidance reminds employers that, if more than one reasonable accommodation will resolve the conflict between the employer’s policy and the employee’s religious objection, the employer may choose which accommodation to offer. When considering potential reasonable accommodations, employers may rely on CDC guidelines. These guidelines include, by way of example, masking while indoors, social distancing, changes of the physical workspace, hygiene and symptom monitoring. If an employee requests to work from home, but the employer can provide alternative reasonable accommodations that reduce or eliminate safety risks, such as masking and social distancing while in the workplace, then the employer may choose its preferred accommodation as opposed to granting the employee’s request to work from home.

Employers should be careful to consider the CDC guidelines before denying a request for an accommodation. An employer will either need to demonstrate that following the guidelines will not reduce or eliminate the safety risk given the specific circumstances, or that following the guidelines would impose an undue hardship on the employer.

5. If an Employer Grants an Accommodation, the Employer May Reconsider it if Circumstances Change

The EEOC’s guidance clearly states that an employer has the right to discontinue a previously granted accommodation if it is either no longer needed because the employee’s religious beliefs have evolved over time or if there is a change in circumstances such that the accommodation now poses an undue hardship. For example, if an employee raises a religious objection to being administered a vaccine that was developed with the use of stem cells in product testing, the objection may be rendered moot if a new vaccine that was not developed by using stem cells in testing becomes available. In this instance, the employer could discontinue the previously granted accommodation because the circumstances have changed such that the employee’s religious objection is no longer applicable.

The EEOC guidance does state, however, that if circumstances change, employers should discuss with the employee any concerns about continuing a religious obligation before revoking it and should further discuss any alternative accommodations that do not impose an undue hardship.

The EEOC’s guidance is a useful tool for employers who are navigating requests for exemptions to mandatory vaccination policies based on a sincerely held religious belief, practice or observance. For employers implementing mandatory vaccination policies and considering requests for reasonable accommodations, Goodwin’s employment law team is prepared to assist with these challenging issues.