Yesterday, the EEOC issued updated guidance (“Guidance”) regarding employers’ obligations in responding to employees’ religious objections to receiving a COVID-19 vaccination. A full copy of the new Guidance can be found at answers L.1 – L.6, located here. 

We will focus on the two questions and answers within the Guidance that address the two primary areas that, in our experience, have been the most troublesome for employers: (1) whether a religious belief is sincerely held and warrants an exemption; and (2) whether it would constitute an “undue hardship” to accommodate a religious exemption request. Here are the two questions posed by the EEOC in its Guidance and a summary of the EEOC’s answers to those questions:

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?

The EEOC confirms that an employer should generally assume that a religious exemption request is based on sincerely held religious beliefs. However, an employer who has an objective basis for questioning the religious nature or sincerity of a particular belief may make a limited factual inquiry and seek additional information.

A religious belief may be nontraditional, but social, political, or personal preferences, or concerns about the possible effects of the vaccine are not “religious beliefs” under Title VII.

Employees may be asked how the their religious beliefs conflict with a vaccination requirement. While an employees’ stated religious beliefs are typically deemed sincere, that sincerity is a matter of individual credibility, and an employer can explore if the employee has acted inconsistently with that belief, whether the timing of the request is suspicious, and whether the accommodation is not sought for religious reasons.

However, an employer cannot assume that an employee is insincere simply because the employee adheres to some, but not all, of the tenets of the employee’s professed religion, or adheres inconsistently, as an employee’s new or inconsistent practices may still be sincerely held.

No one factor is determinative, and religious objections should be evaluated on a case-by-case basis.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation?

Employers must only accommodate an employee’s religious beliefs if it would not cause an “undue hardship.” 42 U.S.C. § 2000e(j). The Supreme Court has held that it is an undue hardship where the cost of accommodating an employee’s religious belief is more than a “de minis,” or minimal, cost or hardship. Employers can consider not only economic costs, but also other concerns, such as workplace safety, “including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.” The EEOC specifically mentioned that employers can consider whether the employee “works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).” Thus, the answer as to whether there is an available accommodation that does not pose an undue hardship to the employer may be different in the case of an administrative employee who can perform their job efficiently from home via remote work versus a clinical worker who has direct and frequent contact with a medically vulnerable population.

Importantly, the number of employees requesting accommodation can also be considered, such that the more people who request accommodation, the more burden to the employer.

Conclusion

The EEOC’s Guidance certainly does not relieve employers of the burdens presented by employee requests for religious exemptions from vaccine mandates. Indeed, its emphasis that such requests be evaluated on an individual basis assures that the process will remain cumbersome.

However, the Guidance does emphasize that employers do have the right and ability to delve into whether religious beliefs are sincerely held and request additional information in appropriate circumstances. Further, the Guidance reaffirms that employers may deny a religious accommodation if it imposes a more than de minimus cost to the employer and provides some helpful grounds upon which employers might base a decision that a particular accommodation is an undue hardship. Unfortunately, the EEOC did not expressly address the question that many employers are asking in this area: is the cost of providing testing to employees and paying for the time to be tested an undue hardship? It would appear from the Guidance that the cost of such testing, particularly for a large group of employees, would be more than de minimus, and therefore could be properly rejected by an employer. In this circumstance, other possible accommodations (such as remote work, scheduling alternatives, etc.) would still need to be considered by an employer.