The EEOC Provides Guidance on Religious Objections to the COVID-19 Vaccine
On March 1, 2022, the Equal Employment Opportunity Commission revised its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to add new Q&As about requests for religious exemptions to COVID-19 vaccine mandates. Of significance are the following points:
Employees Must Request an Accommodation. The EEOC emphasizes that employees must tell their employer if they are requesting an exception to a vaccination requirement because of their religious belief. Although they do not need to use any “magic words” like “reasonable accommodation” or “Title VII,” they must explain the conflict and the religious basis for it. The EEOC states that a best practice is for employers to provide employees and applicants with contact information and the procedure for requesting an accommodation. It has also provided its own internal accommodations form as a sample for employers.
No Social, Political or Economic Views or Personal Preferences. These are not protected by Title VII, and the EEOC specifically asserts that objections based on the possible effects of the vaccine are nonreligious. However, the EEOC notes that there may be overlap between a sincere religious view and a political view; the religious aspect of the belief is covered by Title VII. In addition, the EEOC cautions employers not to assume a request is invalid because it is based on unfamiliar religious beliefs, practices or observances.
The Belief Must Be Sincere. As the EEOC notes, this is “largely a matter of individual credibility.” The EEOC identifies factors that may undermine an employee’s credibility:
- 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 (for example, 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.
The EEOC cautions employers not to assume that a belief is insincere because the employee deviates from the commonly followed tenets of their religion, or because they adhere to some of the common practices but not others. Beliefs may change over time, thus an employee’s past behavior, although relevant, may not necessarily be determinative.
Employers May Ask for Supporting Information. While employers are generally supposed to assume the sincerity of the employee’s stated religious belief, they may seek additional supporting information where there is an objective basis for questioning the religious nature or the sincerity of the belief. The employee is required to cooperate with such a reasonable request.
The Accommodation Must Not Pose an Undue Hardship. Under Title VII, an accommodation that requires the employer to bear more than a de minimis (i.e. minimal) cost is considered an undue hardship. Costs include direct monetary costs, but also the burden of the conduct on the employer’s business – such as the risk of the spread of COVID-19 to other employees or to the public. The EEOC notes that courts have also found hardship where the accommodation would violate federal law, impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
Employers must assess undue hardship on a case-by-case basis, and must rely on objective information, not speculative or hypothetical hardship. Employers may grant some requests and not all. The EEOC notes “common and relevant considerations during the COVID-19 pandemic” to include:
- whether the employee works outdoors or indoors
- whether the employee works in a solitary or group work setting
- whether the employee has close contact with other employees or members of the public (especially medically vulnerable individuals)
- the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer
Other workplace safety considerations include the type of workplace, the nature of the employees’ duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, and how many employees and nonemployees physically enter the workplace.
The Employer May Choose the Accommodation – Sort of. The EEOC states that if there is more than one reasonable accommodation available, the employer may choose the accommodation regardless of the employee’s preference. But the EEOC also warns that “an employer’s proposed accommodation will not be ‘reasonable’ if the accommodation requires the employee to accept a reduction in pay or some other loss of a benefit or privilege of employment (for example, if unpaid leave is the employer’s proposed accommodation) and there is a reasonable alternative accommodation that does not require that and would not impose undue hardship on the employer’s business.” (We believe that the EEOC’s position on this last point is aggressive, and potentially unsupported by the law, which does not contemplate comparative reasonableness). The employer should explain why a preferred accommodation is being denied.
The EEOC also reminds employers to consider all possible alternatives, such as actions recommended by the CDC.
Employers May Reconsider Religious Accommodations. The EEOC notes that an accommodation may be discontinued if it is no longer being utilized for a religious purpose or if circumstances change such that the accommodation now poses an undue hardship. However, employers should consider if there are alternative accommodations that do not pose an undue hardship. The EEOC suggests a best practice would be to discuss concerns about continuing a reasonable accommodation with the employee before revoking it.