EEOC’s 10/25/2021 Updated Technical Assistance Regarding COVID-19 Vaccination Religious Exemption Requests Really Doesn’t Change Much

On October 25, 2021, the EEOC issued updated guidance related to COVID-19: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  You can find the updated guidance here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

The new guidance adds section L.1 through L.5 dealing with Title VII and religions objections to COVID-19 vaccine mandates. In my opinion, the updated guidance does not change much and should really be more of  a re-affirmation of what you are already doing. The key takeaways from this updated guidance are:

I. Employee Notification Obligations

An employee must notify his employer if the employee is requesting an exception to a COVID-19 vaccination requirement due to a sincerely held religious belief. However, the employee need not use the words “accommodation,” “Title VII” or any other magic words. Ideally, employers will educate employees on the process that they should use in order to a religious accommodation.   This will assist employers in controlling the process.

II.  Assessing Religiousness and Sincerity

The EEOC takes the position that an employer would be justified in questioning the religious nature or sincerity of an employee’s professed belief and challenging that belief through a limited factual inquiry only if the employer had an “objective basis” for doing so. 

Although Title VII protection extends to “nontraditional religious beliefs,” it does not require accommodation for “social, political, or economic views, or personal preferences.”

III. Undue Hardship

Deciding whether an undue hardship exists depends on the particular facts of each situation. Employers  “will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.” in order to reject it as an undue burden.

The burden of proving an undue hardship in the context of a religious accommodation is a relatively low one for an employer. Requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief may be an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, the risk of the spread of COVID-19 to other employees or the public. Other relevant considerations are the number of employees seeking a similar accommodation and the cumulative cost or burden to the employer.

IV. Universal Accommodations

Accommodations are a personal thing.  Granting a religious accommodation to one employee does not mean that an employer must grant religious accommodations to all employees. The determination of whether an accommodation will cause an undue hardship is case-by-case and depends upon the individual employee’s position and duties.

V. Preferred Accommodation

Employer’s do not have to provide the specific accommodation requested by an employee. “If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.” 

VI. Reconsideration After Granting an Accommodation

The fact that an employer has granted an accommodation does not mean that it must continue to do so in perpetuity. An employer may reconsider and even discontinue an accommodation “if it is no longer utilized for religious purposes” or poses an undue hardship “due to changed circumstances.”

As always, don’t hesitate to call me directly if you have any questions. 

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