EEOC Issues New Guidance on Religious Exemptions to COVID-19 Vaccine

Updated guidance addresses employer’s responsibilities and obligations when religious exemptions are cited

The Equal Employment Opportunity Commission (EEOC) updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on October 25, 2021, to address religious objections to COVID-19 vaccine mandates.

Key Takeaways from the Updated Guidance:

• • Refusal to Get Vaccinated Due to Religious Reasons - Employees refusing to get vaccinated for COVID-19 must inform their employers that there is “a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.” [FAQ L.1.] The employer may ask for an explanation of how the employee’s religious belief conflicts with the vaccination requirement. [FAQ L.2.]
  • Requesting a Religious Accommodation – Employees must advise their employer that they are requesting an accommodation in lieu of getting the COVID-19 vaccine, due to a conflict between their religious belief and a vaccination mandate. [FAQ L.1]
    • • Best practice – employers inform employees and applicants as to the procedure for submitting a request for a religious accommodation, including the name of a contact person. EEOC’s Religious Accommodation Request Form.
      • Examples of reasonable accommodations – requiring an unvaccinated employee entering the workplace to: (1) wear a face mask, (2) work at a social distance from co-workers and non-employees, (3) work a modified shift, (4) get periodic tests for COVID-19, (5) telework, and (6) reassignment. [FAQ K.2.]
  • Granting a Religious Accommodation - If there is more than one reasonable accommodation that would resolve the conflict between the religiously held belief and the company’s vaccination requirement, the employer may consider the employee’s preference; however, they may choose which accommodation to offer. [FAQ L.5.]
  • Accommodations Can be Changed – Changing circumstances may influence the accommodation obligation. “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 due to changed circumstances.” [FAQ L.6.]
  • Undue Hardship - After assessing the request and possible accommodations on a case-by-case basis, an employer may not need to provide the accommodation if it is an undue hardship. Hardship includes a significant difficulty or expense and may include “the risk of the spread of COVID-19 to other employees or to the public.” An employer “cannot rely on speculative hardships when faced with an employee’s religious objective but, rather, should rely on objective information.” [FAQ L.3. and L.4.]
    • • Best practice – reach out to support organizations, like the Job Accommodation Network, for assistance in evaluating the accommodation request. Documents all efforts to provide the accommodation.

OutSolve’s Take

Just like any other request for an accommodation, it is important to assess the request on a case-by-case basis and document all research, discussions, evaluations, and decisions made involving the request. EEOC’s guidance suggests that you assess undue hardship by considering the particular facts of each situation. When undue hardship is used as the reason for rejecting the accommodation request, the agency puts the responsibility on the employer to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.   The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or minimal, cost to accommodate an employee’s religious belief is an undue hardship.

Prior to revoking an accommodation, it is important to discuss concerns with your management team and document all conversations and decisions. Want more information on accommodations? Join us for a webinar on Best Practices in Accommodations on November 17, 2021, at 2 p.m. EST.