Latest update in series:
What’s Next for Employers After the Supreme Court’s Vaccine Rulings?
(January 14, 2022)
Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements,
Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large
Employers, Federal Contractors and Healthcare Organizations (September 16,
On Oct. 25, 2021 the Equal Employment Opportunity Commission (EEOC) issued
new guidance for resolving religious objections to COVID-19 workplace
vaccination mandates. This guidance comes at a time when many employees are
submitting requests for religious accommodations to workplace vaccine
The EEOC issued the
new guidance (at Section L) while employers
await an Emergency Temporary Standard (ETS) from the Occupational Safety and Health Administration that will
direct large employers to require their employees to be vaccinated or
regularly tested. When the ETS takes effect, employers will likely face a
significant increase in religious accommodation requests.
The theme of the EEOC’s guidance is consistent with prior guidance and case
law addressing religious accommodation under Title VII in non-COVID-19
contexts: Employers must approach each request on an individualized,
fact-specific basis and weigh the requested accommodation against any undue
hardship it may cause.
The EEOC has, however, tailored this general theme to certain key questions
arising from COVID-19-specific situations.
What constitutes a request for religious accommodation?
To request a religious accommodation, an employee needs only to notify the
employer of a conflict between a “sincerely held religious belief,
practice, or observance” and the vaccine requirement. While employees must
put employers on notice, they need not use “magic words” to trigger their
request. For example, they are not required to mention Title VII or use the
term “reasonable accommodation.” The EEOC recommends that employers provide
employees and applicants with procedures and a contact to request a
The EEOC also published the
religious accommodation request form it uses for its employees. The form is not specific to COVID-19
accommodations but may be useful to employers as a template.
How may the employer scrutinize the employee’s accommodation request?
Employers should generally assume that an employee’s request for a
religious accommodation is based on sincerely held beliefs. Employers may,
however, make a “limited factual inquiry” and seek additional information
if they have an “objective basis for questioning either the religious
nature or the sincerity of a particular belief.”
To help determine the religious nature of the belief, employers may ask the
employee to explain an unfamiliar religious belief but may not deny an
accommodation because the belief is unfamiliar or nontraditional. Instead,
employers may reject religious accommodations if they determine that the
employee’s objection is based on “social, political, or personal
preferences, or on nonreligious concerns about the possible effects of the
Employers may also explore the sincerity of the religious belief. According
to the EEOC, the sincerity of the employee’s stated religious belief “is
not usually in dispute.” Employers may, however, ask their employees to
explain the conflict between their religious belief and the vaccine policy.
To that end, employers can assess certain factors that may undermine the
employee’s credibility. Such factors include whether: (1) the employee’s
past actions are inconsistent with the stated belief; (2) the accommodation
may be sought for nonreligious reasons; or (3) the timing of the request is
The EEOC cautions that, although prior inconsistent conduct may be
relevant, an employee’s religious beliefs may change and “scrupulous”
observance to the belief is not required.
When may the employer deny religious accommodations based on “undue
Employers are not required to grant a religious accommodation if doing so
would impose “undue hardship” on their operations. An “undue hardship” may
arise if the accommodation would cause more than “de minimis”
costs to the employer. This is a far lower burden than the similar test
under the Americans with Disabilities Act for evaluating disability
Employers may find an undue hardship and reject a religious accommodation
request if they determine that the accommodation will:
- cause the employer to incur direct monetary costs;
- burden or disrupt the employer’s business by, for example, increasing the
risk of spreading COVID-19 to other employees or the public;
- impair workplace safety;
- diminish efficiency in other jobs; or
- cause co-workers to carry the accommodated employee’s share of
potentially hazardous or burdensome work.
Employers should base their decisions on objective information rather than
“speculative hardships.” Relevant factors may include the type of
workplace, the employee’s duties (including whether they require close
contact with others), the number of fully vaccinated employees, the number
of individuals who visit the workplace and the number of employees who will
need a particular accommodation.
Employers may also consider the “cumulative cost” of granting
accommodations to other employees but may not find an undue
hardship based on an assumption that more employees will seek similar
accommodations in the future. Employers should also consider all possible
reasonable accommodations in making their undue hardship determinations,
such as remote work arrangements, but need not grant the specific
accommodation the employee requests. Instead, they may choose an
alternative accommodation, provided it resolves the employees’ religious
conflict and does not cause an undue hardship.
Overall, despite this more COVID-19-specific guidance, some important
questions remain unanswered. For example, while referencing “direct
monetary costs” as a potential basis for hardship, the guidance does not
indicate whether the cost of testing as an alternative accommodation may be
considered or passed on to the employee. In addition, the guidance does not
address the role of an employer’s reliance on guidance from the Centers for
Disease Control and Prevention as a basis for evaluating accommodation
requests, especially given the frequent changes in that guidance and in
varying transmission rates.
If you have any questions about the new EEOC guidance or a specific
religious accommodation request, please contact the authors of this
article, your McGuireWoods contact or a member of the firm’s
labor and employment team.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.