New EEOC Guidelines on Workplace Vaccination Requirements

Written by Shareholder Barbara Barron

Employers that are requiring vaccinations have been receiving requests for exemptions based on medical leave or sincerely held religious beliefs. Up to now, employers did not know what was permissible to ask regarding sincerely held religious beliefs. On October 25, 2021, The U.S. Equal Employment Opportunity Commission (EEOC) greatly updated and expanded its technical assistance related to COVID-19 and the pandemic by finally providing formal guidance. The new section “L” is entitled Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates and provides useful links to federal regulations. As has been common with government information regarding the COVID-19 pandemic, the EEOC uses a question and answer format to address issues and provide useful information to employers who are mandating vaccinations.

Employee Vaccine Exemption Requests

First, if an employee has a religious exemption, they must inform their employer and request an exception to the vaccine mandate because of a “conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereinafter called “religious beliefs”). Employees aren’t required to utilize any “magic words” in requesting the exemption, but they do need to tell their employer whether their religious belief is against vaccines generally or against a specific vaccine. The EEOC holds that the best practice for employers is to provide information about who to contact and the process to utilize for seeking an exemption. Interestingly, the EEOC even disclosed its own internal form being used for this purpose.

Once an exemption is requested, the employer does not have to accept an employee’s assertion of a religious objection on face value, but can ask additional questions. Generally, under Title VII, an employer should assume that a religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective reason for questioning either the religious nature or the sincerity of the belief, the EEOC states an employer is justified in conducting a limited factual inquiry and seeking additional supporting information. If an employee doesn’t cooperate, the employee risks losing any later claim that the employer improperly denied an accommodation.

Employees can be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. Title VII does not protect social, political, or economic views or personal preferences. Therefore, objections to the COVID-19 vaccination that are social, political, economic, or personal do not qualify as “religious beliefs.”

The sincerity of an employee’s religious belief is “largely a matter of individual credibility.” Factors that might undermine an employee’s credibility include:

• Whether employee has acted in a manner inconsistent with the professed belief;
• Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
• Whether the timing of the request is suspect (for instance, if the employee originally gave a secular reason); and
• Whether the employer otherwise has reason to believe the accommodation is not sought for religious reason.

The employer is permitted to ask for an explanation of how employee’s religious belief conflicts with the employer’s COVID-19 vaccine mandate. Prior inconsistent conduct is relevant, but an employee may have a newly adopted or inconsistently observed practice which is still sincerely held. No one factor is determinative, and each employee’s request for a COVID vaccination exemption should be investigated and adjudicated on an individual basis.

An employer should accommodate an employee’s religious beliefs if it does not cause an “undue hardship” on the employer. If the employer cannot make these accommodations without “undue hardship,” then Title VII does not require the employer to provide the them. The U.S. Supreme Court has held that requiring an employer to bear more than a “de minimis,” or minimal costs to accommodate an employee’s religious belief is an undue hardship. Costs to be considered are not only direct monetary costs, but indirect costs like the burden on the employer’s business and the risk of the spread of COVID-19 to other employees and/or the public. Prior decisions have found Title VII hardship where the accommodation would impair workplace safety, diminish efficiency in other jobs, and/or cause other employees to carry the employee’s workload.

In addition, simply because an employer grants accommodation for one employee does not mean it must accommodate the next employee. The reason is because the employer is considering a number of factors:

• Type of workplace;
• Nature of the employee’s duties;
• Number of employees who are fully vaccinated;
• How many employees and nonemployees physically enter the workplace; and
• Number of employees who will in fact need a particular accommodation.

If more than one accommodation is available to meet the religious beliefs, the employer may choose which accommodation to offer. While the employer should consider the employee’s preference, it is not obligated to select and implement the employee’s requested option. The employer should explain its reasons for choosing one accommodation over another.

Once an accommodation is granted, it can be later reconsidered. 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’s operations. Again, best practice is for the employer to discuss its concerns with the employee.

The EEOC’s guidance leaves considerable subjectivity in granting or denying exemptions to vaccine requirements based on religious beliefs. Therefore, an employer should consider having its policies reviewed by an employment lawyer. Additionally, since a denial may lead to litigation. A second pair of eyes by an employment lawyer on whether the beliefs of an employee requesting an exemption are sincerely held and whether the accommodation creates an undue hardship on the business can save considerable monies further down the road.

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