No Magic Words: EEOC Clarifies Guidance on Religious Accommodations to Vaccine Mandates

October 29, 2021

Latest update in series:
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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 mandates.

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 religious accommodation.

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 vaccine.”

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 suspicious.

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 hardship”?

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 accommodations.

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.