One of the more challenging issues for employers seeking to roll out mandatory COVID-19 vaccination policies has been the administration of requests for religious accommodations. Just before the new OSHA Emergency Temporary Standard regarding mandatory COVID-19 vaccination or weekly testing was announced, the EEOC issued a new update to its Technical Assistance on COVID-19 that provides guidance and assistance on the thorny issue of religious accommodations to mandatory COVID-19 vaccination requirements.
Mandatory vaccination policies are legally permissible provided employers make available reasonable accommodations under the Americans with Disabilities Act for those who object to vaccination on the basis of disability, and religious accommodations under Title VII for those who object to vaccination on the basis of a sincerely held religious belief. Reasonable accommodations are limited by the undue hardship defense. There are relatively few medical conditions that would prevent an individual from being vaccinated for COVID-19, so religious accommodation requests have made up the bulk of accommodation requests from employees.
The updated EEOC Guidance includes a new section on religious accommodations for vaccination at Section L, which was added in October 2021. The new section addresses the most common issues facing employers, including how to address the issue of whether a religious objection is “sincerely held,” and how to determine whether a requested accommodation may be denied due to “undue hardship.” Key takeaways for employers include the following:
- Employees must request accommodation. Employees who have a religious objection to receiving the COVID-19 vaccine have the responsibility to inform their employer of their religious belief and request an accommodation. However, there is no requirement that employees use any specific “magic words” such as “religious accommodation.” The EEOC considers it a best practice for employers to provide employees information on how to request a religious accommodation.
- Employers may request additional information. If an employer has an objective basis for questioning whether the request is actually “religious” in nature, or whether the religious objection is “sincerely held,” the employer is permitted to make a limited factual inquiry.
- Religious beliefs do not have to be traditional to qualify. The definition of religion under Title VII protects “nontraditional” religious beliefs that may be unfamiliar to employers; employers must not assume that just because a religious belief sounds unusual or strange that it is not valid.
- Political and personal beliefs do not qualify as a “religion.” The EEOC’s position on personal beliefs follows the Third Circuit Court of Appeals’ decision in Fallon v. Mercy Catholic Medical Center, 877 F.3d 487 (3d Cir. 2017) which held that a personal belief that “the flu vaccine may do more harm than good” does not qualify as religious in nature. Per the EEOC, “Title VII does not protect social, political, or economic views, or personal preferences.” Similarly, personal views regarding the risks of vaccines that are not based on religion do not qualify.
- Employers may test the sincerity of the employee’s religious belief, if warranted. Generally speaking, the sincerity of an employee’s religious beliefs will not be in dispute. Nevertheless, in some situations an employer may have a legitimate basis for questioning whether an employee’s request for religious accommodation is based on a sincerely held religious belief. This is a credibility determination, and factors to be considered may include inconsistent behavior by the employee or suspicious timing. That said, employees need not be fastidious in their observance to be sincere in their beliefs. Further, employers should not assume that an employee who holds a belief that is inconsistent with commonly held tenets of the employee’s religion is necessarily “insincere.”
- Religious accommodations may be denied if an “undue hardship” is demonstrated. Requiring an employer to bear more than a “de minimis” cost to accommodate an employee’s religious belief is an undue hardship. Costs can include not just direct monetary costs, but also the overall burden on the business, such as the risk of spread of COVID-19 to other employees or the public. Per the EEOC, employers need to assess undue hardship by considering the particular facts of each situation and demonstrate the amount of cost or disruption the proposed accommodation will involve. Objective information should be considered rather than speculative hardships. The particular facts of the employee’s situation are to be considered, for example, does the employee work indoors or outdoors? Does the employee work in a solitary or group setting?
- EEOC Model Form. In an unusual step for the EEOC, the EEOC provided its own Religious Accommodation Request Form used by the agency as an example for employers.
Requests for religious accommodations in the context of COVID-19 vaccination policies must be handled with care. The EEOC’s newly updated Technical Assistance provides some needed guidance for employers. For assistance with this issue, contact Tanya Salgado or any of the attorneys in the Labor and Employment Practice Group.