New EEOC Guidance on Religious Accommodation and Vaccine Mandates, Unpacked
The EEOC updated its guidance on religious accommodation requests from the COVID19 vaccine yesterday. It is worth a read because, as we know, religious accommodation is the most common reason for a vaccination exception now (skip down to section L). Why? It is an area where employers rightly fear to tread and has ambiguity built in to the law. Here are the highlights:
Q. Does an employee need to tell the employer it has a religious objection to vaccination? Is there language that must be used? A: Yes and No. They need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. As for language, there are no “magic words” outside of the conflict or exception request. As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.*
Q. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? A: No and Yes. As we all know, generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. The new guidance reviews the usual course of inquiry and the EEOC delves deeper, recognizing the way the religious objection is intertwined with personally held beliefs that are not religious:
Q: How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? On a case by case basis.* The religious accommodation arena is not a one size fits all. Each set of facts must be examined to determine every step, including undue hardship. The EEOC noted that: “Costs to be considered 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.”
Q: If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? NO. Again, this is an individualized, fact based inquiry and response in each instance.*
Q: Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? NO, if there is more than one accommodation, the employer may choose which accommodation to offer.
Q: If an employer grants a religious accommodation to an employee, can the employer later reconsider it? It depends: the obligation to accommodate does not change but circumstances may. 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.