As we discussed here, employers who have implemented mandatory vaccine policies – either by choice or by government mandate – have seen a significant uptick in religious accommodation requests. As a result, on October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding employers’ obligations under federal anti-discrimination law when an employee objects to a mandatory COVID-19 vaccine policy on religious grounds. The guidance can be accessed here.
Other than expressly discussing religious accommodations in the context of vaccine mandates, the EEOC’s latest guidance does not break much new ground. The guidance nevertheless reiterates the following key considerations for employers when assessing religious objections to vaccine mandates:
- Employee notification: The EEOC states that employees “must tell their employer if they are requesting an exception” to a vaccine mandate due to “their sincerely held religious beliefs, practices or observances.” But employees do not have to use any “magic words” (such as using the phrase “reasonable accommodation” or “Title VII”) to request a religious accommodation. The EEOC recommends employers provide employees and applicants with information about whom to contact and any procedures that must be followed to request a religious accommodation.
- Sincerity of asserted religious belief: The EEOC states that under Title VII, an employer should generally assume that a request for religious accommodation is based on sincerely held religious beliefs. If, however, the employer has an “objective basis” to question either the religious nature or sincerity of a particular belief, the employer may ask follow-up questions and request additional supporting information. The employer may also ask for clarification or an explanation of how the employee’s religious belief conflicts with a COVID-19 vaccine mandate.
- Assessing undue hardship: According to the EEOC, Title VII does not require an employer to provide the requested accommodation if it would create an “undue hardship.” Requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate the religious belief would constitute an undue hardship. The EEOC lists some factors employers can consider when making this assessment:
- Whether the employee requesting a religious accommodation to a vaccine mandate works outdoors or indoors
- Whether the employee works in a solitary or group work setting, or has close contact with other employees or members of the public
- The number of employees who are seeking a similar accommodation
- Accommodating one does not require accommodating all: The EEOC states that employers should address requests on a case-by-case basis. Assessing whether a requested accommodation imposes an undue hardship depends on the specific factual context. The type of workplace, employee’s duties, number of employees in close proximity, and level of interaction with the public may differ between jobs. The employer may also consider the cumulative cost or burden of granting the requested accommodation to multiple employees.
- Employers may provide an alternative accommodation: The EEOC reminds employers that they can consider other “possible alternatives” when evaluating whether the requested accommodation would impose an undue hardship. If more than one accommodation would eliminate the religious conflict, the employer may choose which one to provide.
- Circumstances can change: The EEOC states that “an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer due to changed circumstances.” But, the EEOC recommends that the employer should discuss its concerns about continuing a religious accommodation with the employee before revoking it, and consider other possible accommodations.
In sum, the guidance tracks our previous discussion regarding requests for religious exemptions from vaccine mandates. We will continue to keep you abreast of further developments in workplace law arising from the ongoing COVID-19 pandemic.
If you have any questions regarding mandatory vaccination policies or need guidance in dealing with accommodation requests or any other workplace issues, Reed Smith’s experienced Labor and Employment Group stands ready to speak with you.