Seyfarth Synopsis:  Yesterday, October 25, 2021, the EEOC updated and expanded its Technical Assistance related to the COVID-19 pandemic, adding a section addressing religious objections to employer COVID-19 vaccine requirements.  While some of the information reiterates well-settled Title VII case law, the EEOC clarified its position on a number of important issues.

 Below are highlights of the EEOC's updated Technical Assistance:

  • Employees must tell their employer if they are requesting an exemption for religious reasons.  While employees need not use any magic words, they must notify the employer that there is a conflict between their sincerely held religious beliefs and the employer's COVID-19 vaccine requirement.
  • As a best practice, employers should provide employees and applicants with information about whom to contact, and any procedures for requesting a religious accommodation.
  • Generally, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.  An 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 for failure to accommodate.
  • With regard to the nature of an exemption request, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. 
  • Title VII does not protect social, political, or economic views, or personal preferences.
  • While not usually in dispute, the employee's "sincerity" is largely a matter of individual credibility.  Factors (either alone or in combination) that might undermine an employee's credibility include:  whether the employee has acted inconsistently with the professed belief; whether the accommodation is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows a prior request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
  • The employer may ask employees to explain how their religious beliefs conflict with the employer's vaccine requirement.
  • An employer should not assume an employee's belief is insincere merely because some of the employee's practices deviate from commonly followed tenets of the employee's religion, or because the employee adheres to some religious practices but not others.  No one factor is determinative.
  • Regarding undue hardship, the EEOC reiterated Supreme Court precedent that requiring an employer to bear more than a "de minimis" (minimal) cost to accommodate an employer's religious beliefs is an undue hardship under Title VII.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer's business -- including the risk of the spread of COVID-19 to other employees or to the public.  The EEOC reiterated that courts have found Title VII undue hardship where the 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.
  • In assessing undue hardship on an individual basis, an employer cannot rely on speculative or potential burdens, but should rely on objective information.  Common and relevant considerations during the COVID-19 pandemic include, for example: whether the requesting 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). The employer also may consider the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).
  • In assessing undue hardship and whether exempting a given employee would impair workplace safety, an employer may consider factors including, the type of workplace, the nature of the employee's duties, the number of employees who are fully vaccinated, the number of employees and nonemployees who physically enter the workplace, and the number of employees who will in fact need a particular accommodation. Merely assuming that many more employees might later seek a religious accommodation to the vaccine requirement is not evidence of undue hardship.  However, the employer may consider the actual, cumulative cost or burden of granting accommodations to other employees.
  • The employer does not have to provide an employee's preferred accommodation if other possible accommodations are effective in eliminating the religious conflict without causing undue hardship. If the employer denies the employee's preferred accommodation, however, the employer should explain to the employee why the preferred accommodation is not being granted.
  •  An employer may discontinue a previously granted accommodation if it is no longer serves religious purposes, or if it subsequently poses an undue hardship on the employer's operation due to changed circumstances.  As a best practice, however, the employer should discuss with the employee any concerns about continuing a religious accommodation before revoking it and should consider whether alternative accommodations exist that would not impose an undue hardship.

In subtle but substantive ways, this latest guidance from the EEOC is far more favorable for employers than the Commission's prior Title VII regulations and guidance. Previously, the EEOC has said employers may question the sincerity of an employee's professed beliefs only in the rarest of circumstances. The October 25th Technical Assistance recognizes numerous instances in which employers have good reason to do exactly that. More fundamentally, the EEOC recognized what many employers have been seeing for months: some employees are attempting to cloak political or otherwise secular opposition to COVID-19 vaccines in religious garb. Employers still must tread carefully in denying an accommodation request on grounds that (i) it is not rooted in an employee's religious beliefs, or (ii) it is not sincere, or (iii) no real conflict exists between the employee's beliefs and a vaccine mandate. In the October 25th guidance, however, the EEOC finally recognized that more than a few employees are raising "religious" objections that in fact are no such thing.

Employers in California should note that "undue hardship" is defined differently under the FEHA than under Title VII. Under the FEHA, that phrase means "significant difficulty or expense" -- the same standard an employer must satisfy in FEHA disability cases, but with a carve-out for accommodations that would violate the civil rights of others. Whether this seemingly higher burden will differ in practice remains to be seen. California has in various contexts been at the forefront of vaccination efforts and requirements. California's DFEH and courts may recognize it is easier for employers to meet this burden in the COVID-19 context -- one in which decisions about how long or how many employees get to remain unvaccinated may involve matters of life or death. California employers with vaccine mandates have reason to hope, but they have had their hopes dashed before.

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