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EEOC Expands Vaccine Religious Exemption Guidance

Nov. 3, 2021
Recommends how employers should handle employee requests.

One of the most contentious issues arising from the federal requirement that government contractors and subcontractors make sure that all of their employees are vaccinated against COVID-19 is the question of how employers can honor employee requests for religious exemptions from the mandate.

At the end of October, the Equal Employment Opportunity Commission (EEOC) published an expanded version of its guidance dealing with the question of religious accommodation, an issue that has grown in prominence as a touchpoint for popular anger and resentment as government vaccine mandates have been applied to more and more employers and their employees.

The commission issued a revision of its guidance of religious accommodations earlier this year that did not refer to coronavirus vaccinations but which removed parts added during the Trump administration which extended protection to certain religious beliefs regarding LGBTQ rights in the workplace.

Title VII of the 1964 Civil Rights Act protects employee religious beliefs and is the part of the law enforced by the EEOC. It allows applicants and employees to request religious accommodation for sincerely held religious beliefs and practices, which the employer must grant unless it would create an undue hardship for its operations.

“Employers should carefully review on a case-by-case basis all requests for religious accommodation from COVID-19 vaccination mandates,” says attorney Mark Wiletsky of the Holland & Hart law firm. “Such requests must be based upon the employee’s sincerely held religious belief as opposed to an employee’s political, social, economic or personal views, which are not protected under Title VII.”

The commission holds that an employer should assume that a religious belief is sincerely held unless it has an objective basis for questioning the employee’s sincerity. Wiletsky notes that an employer is justified in making a reasonable request for documentation supporting the employee’s religious request. An employee who refuses to cooperate with this request risks losing the basis for any claim that the employer improperly denied the accommodation.

An “undue hardship” to the employer’s operations must amount to a “significant difficulty or expense,” according to Wiletsky. “Simple inconvenience or ‘de minimus cost’ is not enough to prove an undue hardship.”

Janice Sued Agresti, an attorney with the law firm of Cozen O'Connor, says the expanded EEOC guidance also provides much-awaited additional guidance on the undue hardship analysis, and clarifies that when conducting an undue hardship analysis for religious accommodation, costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business—including the risk of the spread of COVID-19 to other employees or to the public.

“The EEOC also explains that while an employer cannot rely on speculative hardships, employers can consider the number of employees who are seeking a similar accommodation (that is, the cumulative cost or burden on the employer),” Agresti says.

Lastly, the EEOC makes clear that an employer has a right to discontinue a previously granted accommodation if it is no longer used for religious purposes, or if the provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

However, Wiletsky adds, “It is important that employers carefully consider all religious accommodation requests on a case-by-case basis. Do not deny requests for religious accommodation based on assumptions about the employee’s lack of sincerity or simply because the employee is not a member of an organized religion.”

Agresti also warns that employees should not assume on their part that an employer already knows or understands the religious nature of their beliefs. “Employers may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.” 

Is the Employee Credible?

While the sincerity of a religious belief is not normally in dispute, the employee’s sincerity in holding a religious belief is “largely a matter of individual credibility,” the new EEOC guidance holds.

The EEOC outlines several scenarios in which an employee’s religious exemption request can be met with additional questions or denied:

  • When an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief. In such a case, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.
  • When an objection to COVID-19 vaccination is not based on religion. Objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on expressed non-religious concerns about the possible effects of the vaccine, do not qualify as religious beliefs under Title VII.
  • When an employee is not credible. While the sincerity of a religious belief is not normally disputed, employee credibility can be considered when the employee has acted in a manner inconsistent with the professed belief; when there is a particularly desirable benefit that is likely to be sought for non-religious reasons; when 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); or when the employer otherwise has reason to believe the accommodation is not being sought for religious reasons.
  • When an employee fails to cooperate with the employer’s inquiry into their assertions or refuses to submit requested documentation.

The EEOC reminds employers that while prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs or degree of adherence may change over time.

Attorneys Nhan T. Ho and Richard W. Warren of the law firm of Miller Canfield also stress that “employers should not assume that an employee’s belief is insincere simply because some of the employee’s practices are newly adopted, inconsistently observed, or deviating from the commonly followed tenet of the employee’s religion.”

As a best practice, the attorneys recommend that an employer provide employees and applicants with information about whom to contact, and what are the procedures (if any) for requesting an accommodation. An employer also may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement, they add.

The duty to provide religious accommodation absent undue hardship is a continuing obligation that takes into account changing circumstances, they remind employers, noting that employees’ evolving or changing religious beliefs and practices may result in additional or different religious accommodations.

Ho and Warren also point out that an employer may discontinue a previously granted accommodation if it is no longer used for religious purposes or if it would pose an undue hardship on the business operations due to changed circumstances.

“As a best practice, before revoking a previously granted religious accommodation, an employer should discuss with the employee the concerns it has about continuing such an accommodation and consider alternative accommodations that would not impose an undue hardship,” they advise.

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