Employers have new obligations and employees have new rights under the EEOC’s newly finalized revisions to the agency’s Compliance Manual Section on Religious Discrimination. The Compliance Manual does not have the force of law, but sets forth how the EEOC analyzes claims under the law, and provides useful guidance to employers. Although a large portion of the Religious Discrimination Section of the Manual remains the same, there are a few noteworthy changes for employers to consider. Further, with the increasing number of available COVID-19 vaccinations, employers may be left wondering how to balance workplace safety, while making the necessary accommodations for employees who have sincerely held religious beliefs preventing them from getting vaccinated.
Recap of Important Revisions to the Compliance Manual
After commenters expressed concern about the absence of protection for individuals who lack a religious belief, the Commission included that “[t]he non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices.” This key change essentially establishes that an employee is still afforded religious protections, despite not subscribing to a particular religion. However, social, political, economic philosophies or personal preferences, are still not considered religious beliefs, no matter how strong they may be.
Additionally, changes were made involving requests for religious accommodations. Now, if an employee does not provide sufficient information for an employer to fully assess an employee’s request for an accommodation, the EEOC says that it is up to the employer to follow up and request more information. The EEOC says that outrightly denying a request due to vagueness or lack of clarity would now be considered a Title VII violation.
Furthermore, the standard for religious harassment has been heightened. Now, to be considered harassment, actions must be so “severe or pervasive that the employee objectively and subjectively finds the work environment to be hostile or abusive.”
How Employers Should Respond
The Compliance Manual maps out various ways in which employers should respond to certain situations involving an employee’s religion. Throughout the manual, the EEOC takes time to address common scenarios that tend to come up in the workplace, such as tattoos, religious headwear, and days off for religious services. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, it is generally best for an employer to assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.
However, the EEOC fails to address a major concern for many employers across the country as the want and need for vaccinations increases, which is: “What to do if an employee cannot take the COVID-19 vaccination for religious reasons?”
Although the manual is silent on the issue, the EEOC does address vaccinations and religious accommodations on the FAQ section off their website.
How should an employer who requires vaccinations respond to an employee who indicates that (s)he is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
If an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. However, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.
What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a sincerely held religious practice or belief?
If an employee’s sincerely held religious belief, practice, or observance prevents them from getting vaccinated for COVID-19, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker, for example if possible an employer can allow the employee to work remotely. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
As mentioned earlier, although the EEOC Compliance Manual is not binding law, it is a useful tool that can be utilized by employers to ensure they are in line with the EEOC’s guidelines for preventing religious discrimination. Ultimately, aligning your business practices with the Manual is a great way to ensure you are protected from potential Title VII disputes.
