COVID-19: EEOC Issues New Guidance on Religious Accommodations For Vaccination Mandates
Posted November 3, 2021

Religion is already a complex topic in and of itself, and religion mixed with the workplace is even more complicated. When you add COVID-19 and looming vaccine mandates to religion in the workplace, you have a conundrum of epic proportions.

Thankfully, on October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to add a series of six questions and answers that specifically address COVID-19, vaccines, and religious accommodation in the workplace. You can access the full EEOC COVID-19 guidance here. If you want to jump directly to the religious accommodation materials, scroll down to Section L. For more in-depth religious discrimination information from the EEOC, you can view the EEOC Compliance Manual here.

Below are some key excerpts from the EEOC’s question and answer series:

Question L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII?

A. Yes, they must tell; but no specific language is required. Although the EEOC confirms that employees who request an exemption from an employer’s mandatory vaccination policy, “… must tell their employer… [and that they must note that the exemption is requested] because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances,” the EEOC also stated that no “magic words” like “religious accommodation” are needed to make the employee’s request valid. Rather, the employee must only note, “… there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.”

To assist employees in providing the necessary information to employers, the EEOC has shared its own internal workplace religious accommodation request form, which can be accessed here. This form would require modification in the private workplace, and employers are encouraged to seek legal advice in creating their own forms for this purpose.

The EEOC also has previously opined that employers can ask employees to support their requests for religious accommodation with one of the following:

• Written materials describing the religious belief or practice.
• The employee's own firsthand explanation of sincerely held religious beliefs and practices.
• Oral statements, an affidavit or other documents from an individual describing his or her beliefs and practices, including information regarding when the individual embraced the belief or practice, as well as when, where and how he or she has adhered to the belief or practice.
• Oral statements, affidavits or other documents from potential witnesses identified by an individual or an employer as having knowledge of whether the individual adheres or does not adhere to the belief or practice at issue (e.g., religious leader (if applicable), fellow adherents (if applicable), family, friends, neighbors, managers or co-workers who may have observed his or her past adherence or lack thereof, or discussed it with him or her).

Question L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information?

A. Generally, yes. Employers are instructed to “… assume that a request for religious accommodation is based on sincerely held religious beliefs,” but, if “… an [employer has] 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.” Employees must cooperate in good faith or they “… risk losing any subsequent claim that the employer improperly denied an accommodation.”

Be advised that this “limited factual inquiry” is not an open invitation for employers to badger, bully or harass employees for requesting a religious accommodation, but rather it is meant to be an aspect of a good faith interactive dialogue to help the employer better understand an unfamiliar religious belief, or to clarify ambiguities. The EEOC has noted in previous guidance that “… employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.”

Importantly, this section clarifies that employee “… objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine,” are not protected under federal law, and do not support a request for religious accommodation. “When 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 an exception to the vaccination requirement as a religious accommodation.”

But what is an employer to do if an employee submits a request that contains both unprotected social, political or personal arguments or opinions about the vaccines, coupled with a sincerely held religious belief; all within the same request? In that case, employers are cautioned to take a conservative approach, and to consider granting the request (assuming there is no undue hardship) based solely upon the validly-asserted religious reason(s) stated in the request. Employers can, however, inform the employee that the portions of the submission founded on social, political, or personal preferences, do not support the request for exemption.

Question L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation?

A. It’s complicated. First, although it is true that exemptions or reasonable accommodations are not guaranteed, it is equally true that an employer can only deny a request for accommodation, “If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations….” Thus, before reaching the ultimate “undue hardship” conclusion, “… an employer must thoroughly consider (and document) all possible reasonable accommodations, including telework and reassignment.”

This is a case-by-case process. An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.” In almost all instances, a blanket undue hardship across an entire company or operation is not an option.

To help employers better understand what an “undue hardship” is, the EEOC provides that, “The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship … Courts have found Title VII undue hardship where, for example, 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 … Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).”

Despite the foregoing, California employers must remember that the term “undue hardship” is defined more strictly under California’s Fair Employment and Housing Act (“FEHA”). FEHA states that an undue hardship means one that causes “significant difficulty or expense.” This higher California standard should be applied over the lower federal standard to any California employee’s request for religious accommodation.

Question L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs?

A. “No. The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context….” Remember that each request is a case-by-case look and not a one-size-fits-all approach. What may be an undue hardship for an employee whose job duties involve regular contact with medically vulnerable individuals, may not be an undue hardship for an office employee that can work remotely.

Question L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII?

A. No. If there are multiple solutions available to provide a reasonable accommodation that works, then, “… the employer may choose which accommodation to offer ... the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.” As a practical matter, if an employer can accommodate the employee’s preference without causing an undue hardship (remember to use the California standard!), then doing so will lessen friction between the employer and the employee, and will result in a happier and more productive worker. If that cannot be done, however, the EEOC advises that, “… the employer should explain to the employee why the preferred accommodation is not being granted.”

Question L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it?

A. Yes. The EEOC notes that obligations and religious beliefs and practice can change over time (employers know all too well that COVID-19 standards change frequently), so changes can be made to address current circumstances. The EEOC notes, however, that, “As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.”

The EEOC has regularly added to its COVID-19 guidance over time. As such, employers should not only take the time to review the EEOC's currently-issued guidance in its entirety, but also should refer back to it regularly to ensure they stay up-to-date as revised guidance continues to be issued in the future. To help employers locate new content, the EEOC has helpfully listed the date the information was last updated throughout the guidance.

Employers should note that the California Department of Fair Employment and Housing also has issued COVID-19 guidance which can be accessed here. As well, many local counties and cities have local COVID-19 requirements that may be more strict than those published by the federal or state governments. Along with reviewing the federal and state materials, employers must check their local city and county websites for the most up-to-date information.

For assistance with a request for religious exemption from a COVID-19 vaccination mandate, or further information regarding other employment law issues, contact the attorneys at LightGabler.

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