EEOC Provides Employers Clarity in Religious Objection Requests to Mandatory Vaccines

The Legal Intelligencer

By Stephen Antonelli

On September 9, 2021, President Biden announced his administration’s Path out of the Pandemic action plan, a six-pronged national strategy aimed to combat COVID-19 while keeping schools and workplaces open and safe.  One prong of the plan involves vaccinating those who are not yet vaccinated.  To achieve this goal, the president took actions that have since been on the minds of most employers and human resources professionals: he issued an Executive Order requiring contractors who do business with the federal government to mandate vaccinations for their employees; he directed the Occupational Safety and Health Administration (OSHA) to develop a rule requiring employers with 100 or more employees to ensure that their employees are either fully vaccinated or tested weekly; and he ordered the Centers for Medicare & Medicaid Services (CMS) to require vaccinations for most healthcare workers.

As of this writing in early November, the Safer Federal Workforce Task Force has released detailed guidance related to the federal contractor order, but OSHA has not yet released an Emergency Temporary Standard (ETS) to implement the mandate for large employers, and CMS has not yet issued an interim final rule related to healthcare workers.  As a result, employers across the country are waiting for important guidance and details about how vaccine mandates will impact their employees.  Complicating matters further, at least 12 states have commenced litigation against the Biden administration in at least three different federal district courts (Arizona, Missouri, and Florida) over the federal contractor rule, and several states (Texas, Florida, Arizona, and Alabama) have issued executive orders of their own opposing vaccine mandates.

In short, employers could use some clarity on the topic of implementing vaccine mandates.

One agency that has continually provided timely and detailed guidance throughout the pandemic is the Equal Employment Opportunity Commission (EEOC).  On October 25, 2021, it provided the most recent of many updates to its Technical Assistance document, a practical question-and-answer format resource that is organized by category.  The most recent update primarily addressed the topic of employees’ religious objections to vaccine mandates, by guiding employers through hypothetical situations that many employers have actually faced since the announcement of mandatory vaccination programs.  A summary of the latest guidance is below.

  • Although employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a sincerely held religious belief, practice, or observance, they are not required to use any “magic words,” such as “religious accommodation.” Instead, they must only notify their employer that the requirement conflicts with their religious beliefs, practices, or observances.
  • While employers have the right to seek additional information concerning a request for an exception based on an employee’s religious beliefs, employers should generally assume that the request is based on sincerely held religious beliefs, absent an objective basis to question either the religious nature or the sincerity of the stated or professed belief.
  • Title VII of the Civil Right Act uses an expansive definition of the term “religion” that protects nontraditional religious beliefs that may be unfamiliar to employers.  Employers should therefore not assume that an employee’s request is insincere or invalid because it is based on unfamiliar religious beliefs.
  • On the other hand, Title VII does not protect social, political, or economic views, or personal preferences.  Such objections to vaccine mandates do not qualify as “religious beliefs” under Title VII.
  • Courts are likely to resolve disputes over the sincerity of an employee’s stated religious belief in favor of the employee, because these disputes are largely matters of “individual credibility” that are not easily undermined unless the employee has acted in a manner inconsistent with the stated belief, or the timing of the request is suspicious because, for instance, it follows an unsuccessful request for an exception for a secular reason, or the employer has objective evidence demonstrating that the accommodation is not religious in nature.
  • Employers should not assume that a stated belief is insincere because it does not align with commonly followed or known tenets of the employee’s religion, or because the employee’s belief, practice, or observance is relatively new. An employee’s religious beliefs do not have to be shared by an organized religion to be sincerely held.
  • While employers should consider all potential reasonable accommodations, including telework and reassignment, in some circumstances, it not may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship on the employer.
  • Employers that demonstrate that a requested accommodation will be an “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.
  • Courts have held that requiring an employer to bear more than a “de minimis” cost to accommodate an employee’s religious belief can constitute an undue hardship.  Employers should consider monetary costs as well as the burden on conducting business, including the risk of spreading COVID-19 to other employees or to the public.
  • When assessing whether a request for an accommodation will cause an undue hardship, employers should consider the unique facts of each situation and determine the cost or level of disruption of each potential accommodation.
  • If an employer grants a religious accommodation to some employees, it does not automatically have to grant religious accommodations to all employees who request one. Employers should assess the specific factual context of each individual request.
  • When assessing whether an accommodation would impair workplace safety, an employer may consider a number of factors including the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, the number of people who physically enter the workplace, and the number of employees who will in fact need a particular accommodation.
  • Employers are not required to provide employees with the religious accommodation of the employee’s choosing. If there is more than one reasonable accommodation that is available, the employer is not obligated to provide the reasonable accommodation preferred by the employee.
  • After granting a religious accommodation, an employer may reconsider it as circumstances change. An employer may therefore discontinue a previously granted accommodation if it begins to pose an undue hardship on the employer’s operations.  Before discontinuing the accommodation unilaterally, employers should discuss the proposed change or revocation with the impacted employee.  The employer should also consider whether there are any other accommodations that would not impose an undue hardship.

At a time when employers and human resources professionals have just as many questions as they have answers, the EEOC’s updated Technical Assistance document has provided much needed clarity, most recently on the topic of religious objections to vaccine mandates.

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