EEOC Updates Guidance to Address Religious Accommodation Requests Concerning Mandatory Vaccine Policies

In so doing, the EEOC restates several overarching principles it has expressed in the past about what employers need to know when considering an accommodation request based on a purported “sincerely held religious belief.” The agency, however, also explains its view of how those principles apply in the context of vaccine mandate accommodation requests.

First, although it still holds true that employers “should assume that a request for religious accommodation is based on sincerely held religious beliefs,” the EEOC makes clear that an employer lawfully may make limited factual inquiries and seek additional supporting information if the employer has an objective basis for questioning the religious nature or sincerity of the particular belief. Also, as with employer requests for information to support an accommodation for a disability, if the employee does not provide the information to support the religious accommodation, the employee will lose any subsequent claim that the employer improperly denied the accommodation.

Second, the EEOC reiterates that the definition of “religion” includes nontraditional religious beliefs with which employers may not be familiar. That said, when such beliefs are involved, the EEOC allows employers to ask for an explanation about the religious nature of the beliefs. Further, the agency distinguishes “sincerely held religious beliefs” which Title VII protects, from social, political or economic views which Title VII does not protect. “Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or other non-religious concerns about the possible effects of the vaccine, do not qualify as [protectible interests] under Title VII.”

Third, while the sincerity of an employee’s stated religious beliefs is not typically disputed, employers still may assess an employee’s credibility in that regard and the EEOC provides a list of certain factors employers may consider when doing so. Those factors include whether the employee has acted in a manner inconsistent (even if not rigorous) with the professed belief; whether the accommodation is particularly desirable such that it might be sought for nonreligious reasons; whether the timing of the request raises suspicion of sincerity; and whether the employer has any other reason to believe the accommodation is being requested for something other than a religious reason. Even so, says the EEOC, employers should be mindful that an individual’s beliefs may be sincerely held even if they have changed over time and even though the employee practices some aspects of a religion while not following others. Employers must evaluate religious accommodation requests on an individual basis.

Fourth, employers are not required to provide a religious accommodation if it would cause an “undue hardship,” which the Supreme Court has defined as requiring the employer to bear more than a “de minimis,” or a minimal, cost to accommodate. The costs to accommodate can include not only direct monetary costs but also the hardship on the conduct of the employer’s business that can result from, for example, the risk of the spread of COVID-19 to other employees or to the public. Whether an exemption from a vaccination requirement would cause an undue hardship must be based on the particular facts in each situation and should be based on objective information and not speculative hardships. The EEOC notes that relevant considerations may include “whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement 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). Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or hardship on the employer).”

Finally, as with all accommodation requests based on either a disability or a sincerely held religious belief, the EEOC reaffirms that: (a) employers are not required to provide the precise accommodation requested if another accommodation can be provided and is provided which enables the employee to perform her/his job; and (b) employers lawfully may reevaluate accommodations provided and change them if circumstances warrant it, including if the employer later learns the employee no longer utilizes the accommodation for disability-related or religious purposes.

In sum, although the EEOC’s updated guidance largely reiterates principles that long have applied to religious accommodations, the guidance should offer employers some comfort and clarity. This is because the guidance: outlines lawful steps employers may take if they have an objective reason to question the religious nature or sincerity of a request for an exemption from the employer’s mandatory vaccination policy; makes clear that social, political and economic views that so commonly seem to drive COVID-19 vaccination decisions do not need to be accommodated because such views do not constitute protectible sincerely held religious beliefs; and recognizes that numerous employees requesting exemptions may result in an undue hardship, i.e., an unacceptable risk of the spread of COVID-19 in the workplace.

Author Lee Moylan is chair of the labor & employment practice at Klehr Harrison.