Accommodating Requests for Religious Exemption to Employer COVID-19 Vaccination Requirements: EEOC Updates COVID-19 Technical Assistance 

Read the EEOC updated COVID-19 Technical Assistance.

This time to address how Title VII applies when an applicant or employee requests a religious exception to an employer’s COVID-19 vaccination mandate.

Explains EEOC Chair, Charlotte Burrows, “[t]his update provides employers, employees, and applicants with important assistance when navigating vaccine-related religious accommodation requests.” “Title VII,” she adds, “requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship.” The update “will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19.” 

Here’s what employers need to know. 

• Under Title VII, employees and applicants need not use specific language when requesting a religious accommodation. 

According to the EEOC, there are no “‘magic words,’” such as “religious accommodation” or “Title VII” that individuals must utter to request a religious accommodation. They must, however, tell the employer that there is a conflict between their sincerely held religious beliefs and the employer’s vaccination requirement. The same principles apply if the individual has a religious conflict with getting a particular vaccine and wishes to wait until an alternative version or specific brand of COVID-19 vaccine is available. 

As a best practice, an employer should give employees and applicants information about whom to contact and the procedures (if any) to use to request a religious accommodation.  

• An employer need not accept, at face value, an individual’s claimed religious objection. Rather, the employer may ask the employee or applicant for additional information. 

Under Title VII, says the EEOC, an employer normally should assume that a request for religious accommodation is based on sincerely held religious beliefs. But, if an employer has an objective reason to question either the religious nature or the sincerity of a particular belief, the employer may make a limited factual inquiry and seek additional supporting information. And, an employee who fails to cooperate with an employer’s reasonable request risks losing any subsequent claim that the employer improperly denied an accommodation.   

Of course, Title VII’s definition of “religion” encompasses nontraditional religious beliefs that may be unfamiliar to employers. Thus, employers should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs; employers may ask employees and applicants to explain the religious nature of their beliefs.   

By contrast, Title VII does not protect social, political, economic views, or personal preferences. So, objections to COVID-19 vaccination requirements that that stem from social, political, personal preferences, or nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.     

Usually, an individual’s stated religious beliefs are not in dispute. But, the employee or applicant’s sincerity in holding a religious belief is “‘largely a matter of individual credibility.’” And, there are factors that –alone or in combination – might undermine that credibility, including:   

• whether the individual has acted in a manner inconsistent with the professed belief (although employees and applicants need not be scrupulous in their observance);  
• whether the requested accommodation is a particularly desirable benefit that is likely to be sought for nonreligious reasons;  
• whether the request’s timing renders it suspect (for example, it follows an earlier request for the same benefit for secular reasons); and  
• whether the employer otherwise has reason to believe that the accommodation is not sought for religious reasons. 

An employer may ask the employee or applicant to explain how their religious belief conflicts with the employer’s COVID-19 vaccination requirement.   

An individual’s prior inconsistent conduct may be relevant to the sincerity issue. Employers, however, should remember that an individual’s beliefs – or degree of adherence – may change over time. Thus, an employee or applicant may have a sincerely held religious belief, even if they recently adopted it or observe it inconsistently.   

Likewise, an employer should not assume that an individual is insincere just because some of his or her practices deviate from their religion’s commonly-followed tenets or because the individual adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections case-by-case. 

• Proving that it would be an “undue hardship” to accommodate an individual’s religious accommodation request. 

The EEOC points out that, under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment, for employees and applicants who object to the employer’s vaccination mandate. Often, an employer can accommodate a request for a religious exemption from an employer vaccination requirement without difficulty. 

But, if an employer demonstrates that accommodating an individual’s religious belief would impose an “undue hardship” on its operations, a religious accommodation is not required.   

So, what’s an “undue hardship”? The Supreme Court has held that requiring an employer to bear more than a “de minimis” cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs, but also the burden on the employer’s business operation – such as the risk of spreading COVID-19 to other employees or to the public. Or where, for example, the accommodation would diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.   

When deciding whether an accommodation would cause undue hardship, employers should carefully consider the facts of each situation and will need to demonstrate how much cost or disruption the contemplated accommodation would entail. When performing the analysis, employers must not rely on speculative hardships. Instead, they should focus on objective information.  

Certain common and relevant considerations during the COVID-19 pandemic include whether the individual requesting the accommodation works outdoors or indoors, works alone or in a group, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is how many individuals are seeking a similar accommodation, which implicates the employer’s cumulative cost and burden. 

• When an Employer Accommodates One Employee or Applicant, Must It Accommodate Every Individual Who Makes the Same Request?

According to the EEOC, the answer is “[n]o.” 

Determining whether a contemplated accommodation imposes an undue hardship on the employer turns on the facts of each case.  

When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and non-employees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees. 

• Must an Employer Provide the Religious Accommodation That the Employee or Applicant’s Preferred Accommodation?

Again, according to the EEOC, the answer is “[n]o.”   

If there is more than one available reasonable accommodation, the employer may choose which accommodation to offer. The employer, however, should consider the individual’s preference. And, if the employer decides to accommodate them another way, the employer should explain its reasoning to the employee. 

• If an Employer Grants a Religious Accommodation to an Employee or Applicant, May the Employer Later Reconsider It?

Yes. 

According to the EEOC, the obligation to provide religious accommodations absent undue hardship is continuing and takes into account changing circumstances. An individual’s religious beliefs and practices may change over time, which may result in requests for additional or different accommodations. Similarly, an employer may discontinue a previously granted accommodation if the accommodation no longer serves a religious purpose, or if the accommodation later poses an undue hardship on the employer’s operations due to changed circumstances.      

As a best practice, an employer should discuss with the accommodated individual any concerns that the employer has about continuing an accommodation before revoking it. Likewise, employers should consider whether there’re alternative accommodations that the employer can provide without undue hardship.