EEOC updates guidance on COVID-19 religious accommodations and undue hardship

As employers await OSHA’s emergency temporary standard on vaccines or weekly testing, many are also anticipating a slew of religious exemption requests in response to vaccine mandates. The Equal Employment Opportunity Commission (EEOC) has clearly heard employers concerns and has now updated its COVID-19 technical assistance guidance to address the scope of the religious exemption under Title VII. 

Vaccines can be mandated – with exceptions

The EEOC has previously made clear that employers can require all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to Title VII and ADA reasonable accommodations for disabilities and sincerely held religious beliefs that preclude vaccination. This is unless providing such an accommodation would pose an undue hardship on the operation of the employer’s business. As many employers have discovered over the past months, however, discerning the parameters of sincerely held religious beliefs is no easy feat. With its October 25 guidance, the EEOC is attempting to provide employers with greater clarity about the scope of religious exemptions and the bounds of undue hardship in the vaccine mandate context.

The guidance reiterates the EEOC’s long-standing interpretation of Title VII that protection from religious discrimination does not cover a vaccine exemption request when it is based on political, social, or economic reasons because those reasons do not qualify as “religious beliefs.”

Consistent with its earlier guidance, the EEOC notes that “[w]hen 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.” Of course, if the EEOC reviewed exemption requests it would understand the dilemma employers face in trying to determine the exact nature of accommodation requests that often mix religious, political, and social ideologies.

Requests for religious accommodation

The updated guidance confirms that an employee with a religious objection to receiving a COVID-19 vaccine must make that known to their employer. However, because an employee is not required to utter the magic words “religious accommodation,” employers cannot disregard an employee’s general indications of a desire for such an accommodation.

Further, once a request is made, the employer should assume that it is based on a sincerely held religious belief. An employer would be justified in making a limited factual inquiry and seeking additional supporting information if it “has an objective basis for questioning either the religious nature or the sincerity of a particular belief.”

The EEOC’s updated guidance highlights the practical difficulty that employers face is evaluating requests for religious exemptions. While an employee’s “prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.”  

Accommodations and undue hardship

An employer is not required to reasonably accommodate an employee’s religious belief if such an accommodation poses an “undue hardship” on its operations. Unlike the disability accommodation process, in the religious accommodation context, it is an undue hardship to require an employer to bear more than a “de minimis,” or a minimal cost to accommodate an employee’s religious beliefs. In assessing undue hardship, employers may consider costs that “include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.”

In addition, the guidance notes that courts have found 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.” This advice may prove helpful for employers in assessing the feasibility of accommodations.

As employers anticipate numerous religious accommodation requests, the EEOC notes that a “mere assumption” that many employees will seek religious accommodations is not, by itself, “evidence of undue hardship.” The EEOC does allow that “the employer may take into account the cumulative cost or burden of granting accommodations to other employees.” If the OSHA ETS impose testing costs on employers, this advice may be significant for employers in the undue hardship analysis.

Effective accommodations

The guidance also notes that an employer is not required to provide an employee’s preferred accommodation.  Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. In denying an accommodation, the EEOC recommends that employers explain why a preferred accommodation is not being granted. 

Reconsidering or revoking religious accommodations

Finally, the guidance recognizes that an employer may reconsider a previously granted religious accommodation, noting that a previous accommodation may “subsequently poses an undue hardship on the employer’s operations due to changed circumstances.” 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.

Next steps for employers

Like the EEOC’s previous religious accommodation guidance, this updated guidance does little to help employers resolve the thorny issues around “sincerely held” religious beliefs. Employers will, however, find useful insights for evaluating undue hardship factors.

Employers considering or required to impose vaccine mandates should act now to establish procedures for receiving, evaluating, and responding to religious accommodation requests. Employers may have similar procedures in place related to the interactive disability accommodation process. Planning for the religious accommodation process should include:

• Address religious (and medical) exemptions/accommodations in a vaccine mandate policy
• Establish a process for receiving accommodation requests, including use of a template Religious Accommodation Exemption Form and guidance on timing
• Work with a legal and/or human resource professional to develop criteria consistent with EEOC guidance for reviewing religious accommodation requests
• Provide written responses to religious accommodation requests that, as applicable, detail required accommodations or explain why an accommodation is not approved or is an undue hardship
• Prepare to address consequences of employees denied accommodations or who fail to follow accommodations

As the regulations and guidance around vaccines and testing requirements continues to develop, the McDonald Hopkins Labor & Employment Team will continue to provide updates and is available to answer questions, develop policies and forms, and assist with compliance.