EEOC Updates Guidance on Religious Accommodations for COVID-19 Vaccines

​The Equal Employment Opportunity Commission (EEOC) recently answered more questions from employers on how to handle religious objections to COVID-19 vaccinations and requests for accommodation. Here's what employers need to know.

New Questions Answered

The updated guidance answers the following questions about religious accommodations for COVID-19 vaccination requirements:

• Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer?
• Does an employer have to accept an employee's assertion at face value, or may the employer ask for additional information? 
• How does an employer show that accommodating an employee's request would cause an undue hardship? 

The EEOC also made its own internal accommodation request form available to the public. "Although the EEOC's internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic," the agency said. 

Employers should note that the EEOC's guidance covers only the anti-discrimination laws it enforces and employees may have added protections under other federal and state laws.

Managing Religious Objections

"Many employers who implemented vaccine mandates have faced a tidal wave of requests for religious exemptions," noted Michael Puma, an attorney with Morgan Lewis in Philadelphia. "The sheer volume of requests combined with the difficulty of separating protected versus unprotected claims, all while respecting an employee's stated beliefs, has been a significant challenge for human resources and legal departments."

How can HR tell the difference between protected and unprotected claims? Robert Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C., recommended that employers initially ask for a statement from the employee as to the nature of the religious beliefs. He noted that the EEOC appears to understand what employers are facing, given the periodic updates to its COVID-19-related guidance, which is meant to help employers handle an influx of claims.

Employers should consider taking the following steps:

• Create a clear process for employees. Employers should notify employees of the process and forms to be used and should train supervisors to contact HR if workers raise concerns about the employer's policies, Duston said. 
• Use caution when reviewing whether a religious belief is sincere. "Title VII [of the Civil Rights Act of 1964] protects nontraditional religious beliefs that may be unfamiliar to employers," according to the EEOC.
• Consider alternative accommodations and undue hardship. "If an employee has stated a sincerely held religious belief, HR will still need to determine if a reasonable accommodation exists," noted Raeann Burgo, an attorney with Fisher Phillips in Pittsburgh.
• Account for changing circumstances. When employers evaluate their continued obligation to provide a religious accommodation, they should consider changing circumstances, such as an employee's evolving beliefs and the company's operational plans.

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," the EEOC said in its updated guidance. "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 added, "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, the EEOC said, "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.

"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," the agency said.

Undue Hardship

Employers may offer alternative accommodations or reject a job modification that would cause an undue hardship for the business. However, they should note that the "undue hardship" evaluation under the Americans with Disabilities Act (ADA), which covers disability accommodations, is different from the one under Title VII, which covers religious accommodations.

The ADA's stringent undue-hardship standard—which considers whether the modification would cause "significant difficulty or expense"—doesn't apply to religious accommodation requests under Title VII.

Courts have found that anything more than a "de minimis," or trivial, cost can cause undue hardship in religious accommodation cases, and the EEOC noted in its guidance that costs include the risk of spreading the coronavirus and other safety hazards.

Employers should consider objective information, the EEOC said, such as whether the employee works outdoors or indoors; works alone or in a group; or has close contact with co-workers, customers or other business partners.

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