As we await OSHA’s highly anticipated Emergency Temporary Standard (ETS) requiring employers to implement COVID-19 “vaccine-or-test” policies, the Equal Employment Opportunities Commission (EEOC) recently updated its COVID-19 FAQ guidance on workplace vaccines and religious accommodations.
The EEOC’s latest input highlights some key points for employers to keep in mind as they prepare to comply with the ETS, or, for those that are federal contractors, implementing the federal contractor COVID-19 vaccine mandate.
The EEOC’s questions and select portions of the answers are copied and pasted from the FAQ guidance below. For the complete answers, please click on the link above.
- L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII? (10/25/21)
Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”). Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”
When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.
The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.
- L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? (10/25/21)
Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.
The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.
- L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (10/25/21)
Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.
Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship).
- L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? (10/25/21)
No. The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.
- L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (10/25/21)
No. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer. If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.
While employers await OSHA’s vaccination ETS, which is expected to be released soon, employers should work now to align their accommodation protocols with this EEOC guidance.
Do you have COVID-19 vaccine-related questions? Don’t worry—we are here to help!
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