Tuesday, October 26, 2021

Coronavirus Update 10-26-2021: EEOC updated Covid-19 technical guidance to address religious vaccine objections

Religious accommodations to vaccine mandates continue to be the number one issue occupying the time and energy of HR practitioners and employment lawyers. Yesterday, the EEOC updated its Covid-19 technical assistance specifically to address vaccine-related religious objections and accommodation requests.

  1. Most employee requests for an exception to a workplace vaccine mandate because an employee's sincerely held religious belief, practice, or observance should be granted.

  2. Even though the EEOC recognizes the difference between a protected religion and an unprotected social, political, or economic view, or personal preference, employees should presume that nearly all religious accommodation requests are based on a protected religion. Title VII's definition of "religion" is broad and extends to nontraditional religious views, and it's dangerous to assume otherwise. But see Catholics vs. Pope Francis.

  3. There are three pressure points to deny an accommodation request: lack of sincerity, the unreasonableness of the accommodation, and undue hardship.

  4. Generally, employers should assume that a request for religious accommodation is based on sincerely held religious beliefs. Factors that could undermine an employee's credibility in claiming a sincerely held belief include: 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. 

  5. 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 this verification request risks forfeiting any claim that the employer improperly denied the accommodation.

  6. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.

  7. Employers that demonstrate "undue hardship" are not required to accommodate an employee's request for a religious accommodation. Examples of undue hardships include: an impairment of workplace safety, a diminished efficiency in other jobs, or coworkers to carrying out the accommodated employee's share of potentially hazardous or burdensome work.

Nothing in the EEOC's updated guidance is groundbreaking or earth-shattering. In fact, it mirrors much of what I've been telling employers for the past several months. The devil remains in the details: what is a sincerely held religious belief, what accommodations are reasonable, and does an accommodation impose an undue hardship even if reasonable?

Nevertheless, I applaud the EEOC for staying on top of these issues. It continues to establish itself as one of the leading authorities on the intersection of the ongoing Covid-19 pandemic and the workplace. It has done an admirable job for the past 20 months keeping abreast of these issues, publishing updates as warranted, and helping employers (and those of us who advise them) current on these difficult and developing issues.