On Monday, October 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updates to its online technical assistance for employers, providing guidance for managing workplace issues arising from the ongoing COVID-19 pandemic in compliance with the panoply of federal anti-discrimination laws that it enforces.

The updated guidance now includes a new section “L” entitled Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates. The new material includes links to federal regulations regarding religious discrimination as well as previously issued guidance on reasonable accommodations. The new material uses a Question and Answer (“Q&A”) format to address common issues faced by employers mandating employee vaccinations.

In announcing the update, the EEOC acknowledged that many employers are requiring employees to be vaccinated against COVID-19 as a condition of their employment, and listed the following “key updates”:

  • Applicants and employees must inform their employers if they seek an accommodation from the employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
  • Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exemptions from a COVID-19 vaccination requirement.
  • Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

The six Q&As offer detailed responses to inquiries on the topics of:

  • Employee notification to employer of a request for religious accommodation: Employees do not need to use “magic words” to seek accommodations, but must convey that there is a conflict between their sincerely held religious beliefs and the employer’s vaccination requirement.
  • Whether employers may question the sincerity of a belief cited in an employee’s request for religious accommodation: While employers generally should assume that a religious accommodation request is based on a sincerely held religious belief, they may make a limited factual inquiry if there is an objective basis for questioning either the religious nature or the sincerity of a particular belief. The EEOC states that an employee’s sincerity is largely a matter of credibility. In determining such credibility, employers may consider factors such as: whether the employee has acted in a manner inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect; and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
  • How to assess whether a request can be accommodated or poses an undue hardship: An accommodation poses an undue hardship if it will cause the employer to bear more than a “de minimis” (i.e., minimal) cost – in the form of direct monetary costs or operational burdens, including the risk of spread of COVID-19 to other employees or the public. The EEOC directs employers to rely on objective information as opposed to speculation when assessing whether an accommodation will impose an undue hardship.
  • Whether an employer’s accommodation of one request based on sincerely held religious beliefs means that all such requests must be accommodated: Employers must evaluate each accommodation request individually. In doing so, they may consider the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.
  • The extent to which employees can demand specific accommodations: Employees are entitled to a reasonable, but not their preferred, accommodation.
  • The permanence of any employee’s accommodation: The accommodation and undue hardship analysis must take into account changing circumstances; therefore, the accommodation may be changed or discontinued.

The new EEOC material provides employers nationwide with further guidance, as many await issuance of a new Emergency Temporary Standard (“ETS”) from the federal Occupational Safety and Health Administration (“OSHA”). OSHA was directed to develop the ETS to implement President Biden’s directive that all U.S. employers with 100 or more employees ensure that all employees are either vaccinated against COVID-19 or produce a weekly negative COVID-19 test.

Employers must also remain mindful of state and local requirements with respect to religious accommodations. For example, New York State and New York City law define “undue hardship” as an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).

Finally, an employer need not grant a religious accommodation if it would prohibit the employee from performing the essential functions of their position.

There has been a rash of litigation in recent months challenging employers’ COVID-19 vaccination mandates. While most courts have looked favorably upon policies and procedures designed to promote workplace and community health and safety, such practices should be implemented thoughtfully and fairly. Employers fielding requests for accommodations from vaccination (or any other) policies, whether due to religious beliefs or a disability, should consult with counsel to ensure that their responses are defensible against potential claims of discrimination.


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