EEOC issues guidance on vaccine religious accommodations

Somebody say "Amen."

The Equal Employment Opportunity Commission has added a new section to its COVID-19 guidance, related to religious objections to vaccine mandates.


I am happy (OK, relieved) to say that the latest addition to the EEOC guidance is consistent with my meditation on this subject from back in early September. The EEOC guidance is also eminently reasonable. A treat, not a trick.

You employers who are facing religious accommodation requests should read the EEOC guidance in its entirety (it's not that long -- scroll way down to subsection L at this link). Meanwhile, here are the highlights:

Does an employee with a religious objection to the vaccine have to inform the employer of the objection?

Of course, you silly goose. Otherwise, how would the employer know of the need for accommodation? The employee doesn't have to use any "magic words," but he or she does need to get across to the employer that being vaccinated conflicts with the employee's sincerely held religious belief.

The EEOC also recommends that employers notify employees whom to contact if they want to request a religious accommodation.

Can the employer ask for more information about the employee's beliefs before deciding whether to make a religious accommodation?

Yes. The employee should be given the benefit of the doubt, but it is fine for the employer to make a limited request for more information if it has reason to question (1) whether the belief is truly "religious" in nature, or (2) whether the employee's belief is sincere.

Title VII does not protect social, political, or economic views, or personal concerns. Thus, 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, do not qualify as 'religious beliefs' under Title VII." -- EEOC, What You Should Know About COVID-19, the Rehabilitation Act, and other EEO Laws," Section L.2. 

The EEOC reminds employers that the religious protections of Title VII apply to much more than the big faiths that everyone has heard of, that a person doesn't have to be "scrupulous" in his or her religious practice to be sincere, and that unique beliefs or practices even within a faith or denomination may still be entitled to accommodation.

If the employee's objection is either not "religious" in nature or is not based on a belief that is sincerely held, the employer may refuse the accommodation without going to the next step.

Which brings us to the next step . . . undue hardship. 

Even if the objection is religious and very sincere, the employer still doesn't have to accommodate if doing so would be an undue hardship. Employment lawyers for years have been advising employers to pretty much forget about "undue hardship" as a reason for denying an accommodation under the Americans with Disabilities Act. That's because under the ADA, accommodation has to result in a significant difficulty or expense to be an undue hardship, a standard that is almost impossible for most large employers to meet.

But the undue hardship standard under Title VII is easier for employers. All the employer has to show is that religious accommodation would result in more than a "de minimis" expense or inconvenience. 

That easier standard doesn't mean you don't have to consider requests for religious accommodation. Even under the "employer-friendly" standard, the EEOC recommends that employers consider things like letting their religious objectors work from home, or reassigning them to different jobs, if those options are possible. Presumably, regular testing and social distancing would be other reasonable accommodations. On the other hand, the "cost" of accommodation can include the risk of transmission of COVID and the safety of the employee's co-workers and others.

"If I accommodate you, do I have to accommodate everybody?"

No! The employer can take into account the cumulative cost of accommodation in determining undue hardship. It can't say no based on speculation that it will be opening the floodgates to other accommodation requests. But if the concern is more than speculative (for example, if it's based on accommodation requests that have actually been made) then the employer may be able to deny the request based on concerns about the cumulative effect.

Stop me if I've told you this one before. Before COVID, a manufacturer with 24/7 operations had a workforce that was almost 100 percent Baptist. A handful of very devout Baptist employees believed it was a sin to work on Sundays, and they asked to have Sundays off as a religious accommodation. The plant manager was terrified that if he accommodated the handful, the entire plant would refuse to work on Sundays, and then what would he do?

As I read the EEOC's guidance, the plant manager's speculation about floodgates would not be a legitimate reason to refuse the requested accommodation. Likewise, if one employee seeks a religious exemption from a vaccine mandate, the employer cannot refuse to accommodate out of a speculative fear that "if I grant it to you, I'll have to grant it to everybody."

Back to our story. The plant manager overcame his concerns and accommodated the super-devout Baptist employees by not scheduling them to work on Sundays. And, as it turned out, their Baptist co-workers couldn't have cared less about working on Sundays, so the plant carried on without a hitch. And everyone lived happily ever after.

BUT IF THEY HAD NOT . . . if the plant manager had been right, and if a large number of employees asked for Sundays off, the EEOC guidance indicates that he could have drawn the line and said that granting all the requests would have been an undue hardship.

Does the employer have to provide the accommodation requested or preferred by the employee?

No. Just as with the ADA, the employer can choose a cheaper, easier accommodation as long as it is effective (in the context of religious accommodation, "effective" means it eliminates the conflict between the employee's job requirements and the employee's faith). In the context of vaccination exemptions, the EEOC says that the employer can consider the latest guidance from the Centers for Disease Control and Prevention in determining which accommodations to make. 

The EEOC does recommend that the employer explain in advance to the employee why it is not making the accommodation requested.

Once the employer makes a religious accommodation, can it reconsider?

Yes, if circumstances have changed. But the EEOC recommends that the employer discuss it with the employee and explore alternatives before ending the accommodation.

That's the quick and dirty. Good stuff. And happy Halloween!

Image Credits: Sidewalk preacher by daliscar1, peeping skeleton by deckerme, both from flickr, Creative Commons license. Trick-or-treaters from Adobe Stock. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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