EEOC updates guidance for employers: religious exemptions and COVID-19 vaccine mandates

The US Equal Employment Opportunity Commission (EEOC) published updated guidance for employers in how to analyze and process employee requests for religious exemptions from COVID-19 vaccination mandates imposed by employers, which have become more widespread in recent months. This guidance also serves as a primer for employers in advance of the upcoming release of the federal COVID-19 mandate for employers with 100 or more employees via the OSHA Emergency Temporary Standard (ETS). The ETS has not been released as of the date of this publication, but the Department of Labor has indicated that the draft ETS was sent to the White House on October 12, 2021, for final regulatory review. The regulatory review process can take as long as 90 days, but the administration has urged OSHA to expedite the process.

READ: Biden administration reveals plan for COVID-19 vaccine mandate for private employers; threatens fines >

Updated guidance

The updated guidance expands upon key exemption issues and questions for employers such as:

  1. What must employees do to notify their employers of the conflict between the employer’s vaccination policy and the employee’s sincerely held religious belief;
  2. If and to what extent employers can inquire about the religious nature and/or sincerity of an employee’s asserted belief; and
  3. What constitutes an “undue hardship” for employers such that an employer is not required to provide a reasonable accommodation under Title VII of the Civil Rights Act?

Similar to those employees seeking an accommodation on disability grounds under the ADA, an employee need not utter any special words or phrasing triggering an accommodation dialogue, however an employee must inform the employer of their request for an accommodation on religious grounds.

The updated guidance reiterates longstanding prior guidance under Title VII that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, an employer may make a limited factual inquiry and make seek additional supporting information IF the employer has an objective basis for questioning either the religious nature or the sincerity of the employee’s represented belief. Employers should proceed with caution in navigating this issue and should seek additional information only if they have an objective basis for questioning the employee’s representations. An employee does not need to belong to a traditional or well-recognized faith or religious practice, but the belief has to be grounded in the employee’s religion or faith and cannot be based upon “social, political, or economic views, or personal preferences.”

The EEOC has provided the following factors in assessing employee credibility which in turn may provide an objective basis for an employer to further inquire about an employee’s sincerely held religious belief:

  • “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 (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); or
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”

Once a request for accommodation is established based on a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless it would cause the employer undue hardship. Under Title VII, an employer should consider all possible reasonable accommodations, including telework and reassignment. An employer is not required to bear more than a de minimis or a minimal cost to accommodate an employee’s religious belief as previously stated by the US Supreme Court (this contrasts with the undue hardship standard under the ADA which requires that the reasonable accommodation pose “significant difficulty or expense” to the employer). Costs include not only financial considerations, but also the impact of the accommodation on the employer’s business. In the COVID-19 context, the EEOC provides that a consideration for employer’s evaluating undue hardship includes the risk of transmission of COVID-19 to other employees or to the public. Factors used to assess this risk include whether the employee works indoors or outdoors, works in isolation or in a group setting; or has close contact with members of the public or other employees.

Employers must assess each employee’s request on an individual basis and cannot rely on speculative hardships. While employers may conduct a limited factual inquiry regarding an employee’s conduct that may appear inconsistent with the expressed belief, employers should not become the arbiters of orthodoxy especially in interpreting religious doctrine when evaluating an employee’s request. The EEOC provides in its updated guidance that 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.”  

Employers should carefully and methodically address each request for religious accommodation to prevent employee claims of discrimination. Employers should also be mindful of any state or local laws which may impact employee religious protections as the EEOC’s guidance is limited to employment rights and obligations under Title VII of the Civil Rights Act.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

Megan Butz

By Megan Butz
General Counsel, HR Compliance, Checkwriters
Megan joined Checkwriters in 2020 and is responsible for reviewing, revising, and implementing internal policies of the company, advising on human resource, employment, and labor matters, and monitoring and publishing state and federal legal updates to the Checkwriters News and Compliance Center for distribution to thousands of clients around the country. Before joining Checkwriters, Megan served as a judicial law clerk for the justices of the Massachusetts Probate and Family Court performing legal research and writing, followed by private practice in Cape Cod.

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