On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued an update to its COVID-19 Technical Assistance to provide additional guidance on a hot topic among employers implementing or considering COVID-19 vaccine mandates in the workplace: How do we address employees’ increasingly common religious objections to getting vaccinated?
CLICK HERE to review the full Technical Assistance Q&A entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (the “Technical Assistance”); the religious exemption provisions are set forth in Section L.
Although much of the Technical Assistance merely repeats existing EEOC practice and will be familiar to employers, it serves as an important guide for some of the most pressing questions facing employers dealing with employees’ religious objections to mandatory vaccination policies:
- How can an employee ask for a religious exemption to a COVID-19 vaccination requirement?
The EEOC makes clear that employees and applicants do not need to say any “magic words” to trigger an employer’s obligation to consider their request for a religious exemption, they merely need to notify the employer that there is a conflict between their sincerely held religious beliefs and COVID-19 vaccination.
The Technical Assistance points out that an employee may have a religious conflict with getting a particular vaccine and an employer should give the same consideration to a request to wait for a particular version or brand as to a request to be excused from the vaccine requirement. The Technical Assistance advises employers that it is a “best practice” to provide information to employees and applicants at the outset about whom to contact and how to make a request for religious accommodation.
- Can an employer ask for more information if an employee claims a religious objection to a COVID-19 vaccination?
In most cases, an employer must assume that the objection is based on sincerely held religious beliefs and may not investigate further. However, the Technical Assistance provides that where there is an “objective basis” for questioning either the religious nature or the sincerity of an employee’s professed belief, an employer may make a “limited factual inquiry and seek additional supporting information.”
Some factors identified by the EEOC as relevant to employer’s determination of employee credibility or sincerity of their belief include: whether the employee has previously engaged in conduct inconsistent with the professed belief, whether the accommodation sought is particularly desirable and likely to be sought for nonreligious reasons, and whether the timing of the request raises questions about its validity.
If there is an objective basis for seeking additional information, the employer may ask the employee to explain:
- the religious nature of their belief – as distinct from their objection to the vaccine based on social, political, or personal preferences or concerns about the vaccine’s possible effects — and;
- how the religious belief conflicts with the vaccination requirement.
The Technical Assistance reminds employers that they must evaluate each religious objection on an individual basis. It also makes clear that an employer may take into account the potential impact on workplace safety (considering, for example, the type of workplace, the nature of the employee’s duties, and the number of other employees who are vaccinated) as well as the potential cumulative cost or burden of granting accommodation to all of the other employees who may need the same accommodation.
- What types of accommodations should an employer consider in determining whether to grant an employee’s request for exemption from vaccination for religious reasons?
Employers that demonstrate “undue hardship” (defined for these purposes as having more than a minimal cost or burden on the employer) are not required to accommodate an employee’s request for a religious exemption from a vaccine mandate. The Technical Assistance directs employers to consider all possible
alternatives prior to deciding the employee’s request would impose an undue burden. For example, an unvaccinated employee might be required to wear a face mask, maintain social distance from co-workers or others in the workplace, work a modified shift, get periodic tests for COVID-19, or accept reassignment.
Another reasonable accommodation could be giving the employee the opportunity to telework.
According to the EEOC, employers may rely on CDC recommendations in evaluating whether an effective accommodation is available. An employer may also reconsider a particular accommodation after it has granted it, taking into account changing circumstances – though the Technical Assistance advises that an employer should discuss any concerns with the employee and consider alternatives before rescinding a religious accommodation.
Employers should keep in mind that the EEOC’s jurisdiction covers the federal antidiscrimination laws and other legal requirements may apply. CLICK HERE and HERE to review our prior eAlerts regarding federal vaccination mandates for private employers and for federal contractors announced as part of President Biden’s Path Out of the Pandemic” Plan. We are continuing to monitor the progress of the impending Emergency Temporary Standard being developed by the Occupational Safety and Health Administration to implement the federal vaccine mandate for private employees with 100 or more employees. In addition, other state and local regulations – including, in some locations, vaccine bans – may impact an employer’s implementation of a vaccine mandate and consideration of employee requests for exemption.
If you have any questions relating to this eAlert, how to comply with workplace vaccine policies or obligations, or any other COVID-19 related issue, please reach out to the NFC Attorney with whom you
typically work or call us directly.