A common issue that many employers are currently dealing with is COVID-19 vaccine mandates. President Biden recently announced that he has put OSHA in charge of developing a rule that that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. As a result of Biden’s announcement as well as other concerns, more and more employers have begun implementing vaccine mandates. With these mandates comes employee’s requests for accommodations. The accommodation requests arise in two different ways – either as an accommodation request under the Americans with Disabilities Act (“ADA”) or under Title VII of the Civil Rights Act of 1964 (“Title VII”).

As most employers know, the ADA prohibits discrimination and requires employers to make reasonable accommodations to enable qualified individuals with a disability to perform the essential functions of their job.  Title VII prohibits discrimination based on a variety of protected categories, one of which is religion. This week the EEOC provided updated guidance regarding religious accommodations to COVID-19 vaccine mandates.

Under Title VII, job applicants as well as employees have the right to request an exemption, also called a religious accommodation, from an employment mandate that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer is able to show that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.

Some employers do not have much experience dealing with employees’ requests for a religious accommodation; therefore, questions can arise regarding how to handle the request.

The EEOC has advised that an employee does not need to use any magic words such as religious accommodation or Title VII, in order to request a religious accommodation from an employer’s vaccine mandate. However, the employee does need to notify their employer that there is a conflict between the employer’s vaccine mandate and their sincerely held religious beliefs. The EEOC advises that, as a best practice, an employer should provide job applicants and employees with information about whom to contact and the procedures used to request a religious accommodation.

In a rare move, the EEOC made the form it uses for it’s own employees accessible for other employers to use and reference.

The next issue that employers may face is how to deal with an employee’s request for religious accommodation when the employer is unsure if the request is actually based on an employee’s sincerely held religious beliefs.

The EEOC has advised that employers should generally assume that a request for religious accommodation is based on sincerely held beliefs. However, if an employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, the EEOC has advised that the employer is justified in making a limited factual inquiry and seeking additional supporting information. If an employer makes a reasonable request for verification of the sincerity or religious nature of a stated belief, and the employee fails to cooperate, the employee risks losing any claim that the employer improperly denied their accommodation.   

Keep in mind that Title VII protects nontraditional religious beliefs that may be unfamiliar to employers. As such, while an employer should not assume the request is invalid because it is based on a religious belief not familiar to the employer, the employer is allowed to ask the employee to explain the religious nature of the belief. Regarding nontraditional religious beliefs, the EEOC’s guidance is clear that Title VII does not protect social, political, or economic views, or personal preferences. As such, an employee’s objection to a vaccine mandate that is 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.

What exactly is meant by “sincerely held religious beliefs?” The sincerity of a religious belief held by an employee is largely a matter of individual creditability. The EEOC has advised that the sincerity of an employee’s stated religious beliefs should also not usually be disputed. However, the EEOC has listed some factors, either alone or together, that may undermine an employee’s creditability including: 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); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

An employer is also allowed to ask for an explanation of how the employee’s religious beliefs conflicts with the employer’s vaccine mandate. Employers should keep in mind that while prior inconsistent conduct is relevant to the question of whether it is the employee’s sincerely held belief, an employee’s beliefs and their degree of adherence to these beliefs may change over time; as such, an employee’s newly adopted or inconsistently observed practices may still be sincerely held. Employers should be very careful and not assume that an employee is being insincere merely because some of the employee’s religious practices may deviate from the commonly followed tenets of a religion or because the employee adheres to some common practices but not others.  As such, the EEOC advises that no one factor, or consideration should be determinative and religious accommodation requests should be evaluated on an individual basis.

The EEOC also provided additional guidance about religious accommodations and undue hardship. As stated above, if the religious accommodation causes undue hardship on an employer’s operation, Title VII does not require the employer to provide the accommodation. However, the EEOC has stated that in many circumstances, it is likely that an employer will be able to accommodate employees seeking a reasonable accommodation for their religious beliefs, or observances without imposing an undue hardship.

The EEOC has advised that costs that should be considered when determining undue hardship should include not only direct money costs but also the burden on the conduct of the employer’s business, which includes the risk of COVID-19 spreading to other employees in the workplace or the public. As such, employers will need to assess undue hardship by considering the particular facts of each situation and will also need to demonstrate how much cost or disruption the employee’s requested accommodation would involve. Of note though, an employer cannot rely on speculative hardship that may be faced, but instead, should rely on objective information.

When determining undue hardship in relation to a religious accommodation, the EEOC has stated certain common and relevant considerations during the COVID-19 pandemic include: whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  An additional relevant consideration would also be the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

If an employer is implementing vaccine mandate, they need to be prepared to address religious accommodations requests by employees. Employers should have policies and procedures in place for these types of requests. It is important to keep in mind the EEOC’s guidance and make sure that the granting or denial of each religious accommodation request is determined on an individual basis. Also, any undue hardship determination should always be based on objective information and not speculative hardships that may be faced. An employer should always remember, an employee’s objection to a COVID-19 vaccination requirement must be religious in nature and sincerely held. If not, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Members can download a sample COVID vaccination policy from our Member Portal. Members can also contact our HR Hotline and speak with a member of our team of experienced HR and legal professionals about handling accommodations and COVID-19. Not a member? Join today and begin enjoying the benefits of membership.