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Vaccine mandate and religious exemptions: EEOC issues new guidance as OSHA prepares rule for large employers

October 27, 2021

On Monday, Oct. 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued a press release announcing that it has provided further insight into when companies must exempt workers from COVID-19 vaccine mandates for religious reasons, an issue that has already spurred closely watched litigation.

This guidance comes as more employers are adopting vaccine mandates, either voluntarily or in response to President Joseph Biden's executive order requiring federal contractors to do so. The Occupational Safety and Health Administration (OSHA) is also expected to unveil a rule as early as this week that will likely detail the compliance requirements applicable to employers with 100 or more employees to mandate vaccines or require regular testing.

Highlights from the EEOC’s updated guidance on religious exemptions

  • Employees must inform their employers if they intend to seek a religious exemption. However, the new EEOC guidance makes clear the employees do not have to utter "magic words" such as "religious accommodation" or "Title VII" to trigger an employer's legal obligations. The new EEOC guidance states that employers should assume that a worker’s professed religious beliefs are sincere, but an employer can seek more facts.
  • A sincerely-held religious belief continues to include non-traditional religious beliefs, but excludes social, political, or economic views, or personal preferences. ​​​​​​The new EEOC guidance states that while employers should presume that a worker’s faith-based request for a vaccine exemption is legitimate, federal anti-discrimination laws permit employers to deny exemption requests that are rooted in political or personal objections. While Title VII shields workers from bias based on religious beliefs, including “nontraditional religious beliefs,” the EEOC reiterated in the new guidance that the law “does not protect social, political, or economic views, or personal preferences.”
  • Limited factual inquiries about sincerity of beliefs are allowed. While employers should generally presume that a worker’s request for religious accommodation is based on a sincerely-held religious belief, if an employer has an objective reason for doubting whether the belief is religious in nature or sincerely-held, it may make a “limited factual inquiry” that seeks additional information to verify the legitimacy of the accommodation request. The appropriate bounds of that “limited factual inquiry” is unclear. Employers should carefully evaluate the need and scope of any follow-up requests keeping in mind existing guidance that clarifies a sincerely-held religious belief need not conform to main-stream doctrine or commonly-held beliefs.
  • Employees must cooperate and respond to an employer’s reasonable factual inquiry to verify the sincerity of the belief. Whatever form the “limited factual inquiry” takes, the EEOC guidance states: “[a]ny 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.”
  • Undue hardship remains a part of the religious accommodation analysis. The new EEOC guidance clearly provides that undue hardship remains part of the process of evaluating whether an employer can accommodate the religious exemption. Once a worker sufficiently establishes a sincerely-held religious belief requiring exemption from the COVID-19 vaccine mandate, the burden shifts to the employer to demonstrate that accommodating the worker’s request would pose an undue hardship on the employer. Under the EEOC’s updated guidance, an employer must base accommodations on objective information and not mere speculation. The guidance notes three main considerations an employer may weigh when assessing undue hardship:
  1. The cost: The guidance reiterates the established standard that “more than a ‘de minimis,’ or a minimal, cost” is an undue hardship. “Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.” The EEOC notes that courts have previously found undue hardship where a 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.
  2. The workplace setting: The new guidance notes several fact-specific considerations an employer may assess, including:
    1. Whether the employee works outdoors or indoors
    2. Whether the employee works in a solitary or group workplace setting
    3. Whether the employee has close contact with other employees or members of the public
    4. The nature of the employee’s duties
    5. The number of employees who are fully vaccinated
    6. The number of employees and nonemployees who physically enter the workplace
    7. The number of employees who are seeking a similar accommodation (i.e. the cumulative cost or burden on the employer)

Notably, as to this last consideration, the guidance indicates that the employer may “take into account the cumulative cost or burden of granting accommodations to other employees” which may justify denial of some or all subsequent “me too” requests.

  1. Alternative accommodations: The new guidance reiterates that 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, the employer may choose which accommodation to offer, even if it is not the employee’s preference.
  • An employer has the right to discontinue a religious accommodation. Importantly, the EEOC notes that the “obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances,” and that an employer has the right to discontinue a previously granted accommodation if it is no longer required for a religious purpose or if the accommodation subsequently poses an undue hardship due to changed circumstances.

Sample religious accommodation request form

The EEOC has provided employers a sample religious accommodation request form.

For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.

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