On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) expanded its previous guidance “What to Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws” to include recommendations for employers who receive religious objections from employees in response to of the employer’s mandatory COVID-19 vaccination policy. Notably, the EEOC added Section L to its previous guidelines, which addresses specific questions related to religious concerns. The newly added questions are outlined below. All employers should review and familiarize themselves with these guidelines as they continue to face objections and requests for employee housing related to the COVID-19 vaccine mandates.
Should employees who have a religious objection to receiving a COVID-19 vaccination notify their employer? If so, is there a specific language to be used under Title VII?
According to EEOC guidelines, employees must inform their employer that they are requesting an exemption from a COVID-19 vaccination requirement. While there are no “magic words” for employees to use, they should inform their employer that there is a conflict between their genuine religious beliefs and the employer’s vaccination requirement.
The EEOC recommends that employers provide employees and job applicants with information about who to contact and the procedure to follow to apply for religious accommodation.
As a best practice, an employer should provide employees and job applicants with information about who to contact and the procedures (if applicable) to follow to apply for religious accommodation.
Should an employer simply accept an employee’s claim of religious objection to a COVID-19 vaccination? Can the employer ask for additional information?
The directive states that employers must assume that a request for religious accommodation is based on a genuine religious belief. However, if an employer has an objective basis for questioning the religious nature or sincerity of a particular belief, the employer may conduct a limited factual investigation and seek additional supporting information, including asking for an explanation of how the employee is in violation of the employer’s vaccination obligation against COVID-19.
The EEOC notes that Title VII protects nontraditional religious beliefs that employers may not be aware of. Employers should not assume that an employee’s request is invalid simply because it is based on an unknown religious belief. Employees may be asked to explain the religious nature of their faith. However, Title VII does not protect social, political or economic views or personal preferences.
The sincerity of an employee’s religious belief is usually not in question, as the employee’s sincerity in adhering to a religious belief is “largely a matter of individual credibility.” The guidance provides the following factors, alone or in combination, that can undermine an employee’s credibility: (1) whether the employee has acted in a manner contrary to the professed belief (although employees are not required to be scrupulous in their compliance); (2) whether the housing sought is a particularly desirable benefit likely to be sought for non-religious reasons; (3) whether the timing of the request makes it suspicious; and (4) the employer has other reasons to believe that housing is not being sought for religious reasons. No single factor or consideration is decisive.
How does an employer show that it would be an “unnecessary hardship” to accommodate an employee’s request for religious accommodation?
Title VII does not require an employer to provide religious accommodation if the employer demonstrates that it is not reasonably able to accommodate an employee’s religious beliefs without an “undue hardship” from his activities. 42 USC 2000e(y). The Supreme Court has ruled that it is an unnecessary hardship to require an employer to bear more than a “de minimis” or minimum cost to accommodate an employee’s religious affiliation. Costs to be considered include not only direct monetary costs, but also the burden on the employer’s business, including, in this case, the risk of spreading COVID-19 to other employees or the public. Improper hardships could include circumstances where the religious accommodation would impair workplace safety, reduce efficiency in other jobs, or cause co-workers to bear the housed worker’s share of potentially hazardous or taxing work.
Employers will have to assess unnecessary hardships on a case-by-case basis. Furthermore, employers will have to demonstrate how much cost or disruption the accommodation proposed by the employee would entail. Employers should rely on objective information and should not rely on speculative hardships when dealing with an employee’s religious objections. Relevant considerations include, for example: whether the employee applying for religious accommodation for a COVID-19 vaccination requirement is working outdoors or indoors; works solitary or in a group; has close contact with other employees or members of the public (especially medically vulnerable persons); and the number of employees seeking comparable housing (ie the cumulative cost or burden on the employer).
If an employer grants some employees religious accommodation because of a COVID-19 vaccination obligation because of genuine religious beliefs, should it grant the requests of all employees seeking accommodation because of genuine religious beliefs?
New. Employers should conduct an individual investigation for each housing request received, as determining whether a proposed housing creates an undue barrier to the employer’s business depends on the specific factual context.
Should an employer provide the employee’s preferred religious accommodation if there are other possible accommodations that would also be effective in eliminating the religious conflict and not cause undue hardship under Title VII?
New. If there is more than one reasonable accommodation that removes the conflict between the vaccination requirement and the genuine religious belief without causing undue hardship, the employer can choose which accommodation to offer. If the employer refuses the accommodation proposed by the employee, the employer must explain to the employee why the employee’s accommodation is not offered.
If an employer grants religious accommodation to an employee, can the employer reconsider it later?
Employers may discontinue previously allocated accommodation if it is no longer used for religious purposes, or if the accommodation provided subsequently creates an unnecessary hindrance to the employer’s business due to changed circumstances. Before withdrawing housing, the employer should discuss with the employee any concerns about continued housing and whether alternative housing exists that does not create undue difficulties.
It should also be noted that an employee’s religious beliefs and practices may evolve or change over time.
Practical tips for employers
Consider and review EEOC guidelines and related issues when implementing a COVID-19 vaccination program to ensure appropriate procedures and safeguards are in place to comply with ADA, Title VII, and other federal and state laws. Be aware of state and local laws that may impose additional or different requirements.
Establish a process and protocol to involve workers in an interactive process if they cannot receive a vaccine for religious or other reasons.
Update the COVID-19 policy to reflect these new guidelines and your company’s COVID-19 vaccine program.
The legal landscape continues to evolve rapidly and there is a lack of clear powers or clear rules for implementation. This article is not intended to be an unambiguous, universal guideline, but instead sets out our interpretation of where applicable law currently and generally applies. This article does not address the potential consequences of the numerous other local, state, and federal orders issued in response to the COVID-19 pandemic, including, but not limited to, potential liability if an employee becomes ill, requirements with regarding family leave, sick pay and other matters.
Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 321