Employers Should Review the EEOC’s New Guidance on COVID-19 Vaccine Mandates and Requests for Religious Accommodations

Most HR professionals are aware that Title VII prohibits religious discrimination. And many know that employers covered by Title VII are required to affirmatively accommodate sincerely held religious beliefs or practices so long as doing so does not impose an undue hardship. Even so, until recently, most employers had little experience evaluating requests for religious accommodation. These requests were rarely made, and when they were, they often were granted without issue (sometimes, without an employer even realizing that it was engaging in an interactive process)—e.g., an employer might not even realize that providing an employee a quiet place to pray during break or lunch time is a religious accommodation.

COVID-19, and specifically the rise of employer-imposed vaccine mandates, has brought the duty to accommodate religious beliefs or practices into sharp focus. As many employers grapple with requests for exemption from COVID-19 vaccine mandates on religious grounds, the EEOC has updated its guidance to address these requests. It largely tracks the concepts first identified in the EEOC’s Guidance on Religious Discrimination, issued on January 15, 2021.

Overview of the New EEOC Guidance

The new guidance, issued in response to the recent increase in employer-imposed COVID-19 vaccine mandates, is intended to clarify for employers three key concepts relating to the duty to provide religious accommodations under Title VII: (1) whether a belief is religious, (2) whether a belief is sincerely held, and (3) whether a requested accommodation poses an undue hardship.

As to the first two concepts, the guidance states that “[g]enerally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.” But the guidance goes on to acknowledge that employers may have “an objective basis” for questioning the religious nature or sincerity of a belief and, in those circumstances, a corresponding basis to make a “limited factual inquiry” regarding the nature of a belief. With respect to the religiosity and sincerity of a belief, the guidance gives employers flexibility to make determinations based on the specific facts and circumstances in issue. In other words, the guidance establishes no bright-line rules to be applied and provides that each request must be evaluated on its own merits according to relevant factors.

The guidance further makes clear that the undue hardship defense to a request for accommodation is a relatively minimal burden and can include consideration not only of monetary costs, but also of safety risks due to potential COVID-19 spread at the workplace. Those risks can include consideration of the cumulative effect of the presence of unvaccinated persons at the workplace. The guidance warns, however, against reliance on speculative hardships.

Below is a summary of key takeaways and remaining open questions.

Key Takeaways

Generally, employers should assume that a religious exemption request is based on a sincerely held religious belief. However, if an employer has an “objective basis” for questioning whether the belief is religious in nature or sincerely held, it may make a “limited factual inquiry” and seek more information, including documentation.

“Religious” beliefs do not include beliefs based on social, political, or personal preferences, or on “nonreligious concerns about the possible effects of the vaccine.”

Factors for evaluating whether a belief is “sincere,” which is “largely a matter of individual credibility,” include:

  • Whether the employee has acted in a manner inconsistent with the professed belief. This aspect of the guidance is consistent with the template religious accommodation form recently issued by the federal government for its own employees, which contains questions regarding how long the employee has held the belief at issue and the employee’s past use of vaccines. Notably, however, employees need not be “scrupulous” in their observance of the belief asserted. The guidance adds that although prior inconsistent conduct is “relevant,” the beliefs – or the “degree of adherence” – may change over time, such that even “newly adopted” or “inconsistently observed” practices can nonetheless be sincerely held. In other words, the guidance does not suggest that an employer may deny a request for accommodation simply because an employee has in the past (even recently) taken vaccines developed with methods similar to those used in the development of the COVID-19 vaccine or simply because an employee has otherwise acted in the past in a manner inconsistent with the belief identified as the basis for the request for exemption from a COVID-19 vaccine mandate.

    A request is not necessarily insincere because some of the employee’s practices deviate from the commonly followed tenets of the religion, or because the employee adheres to some common practices and not others. In other words, an employee’s asserted belief need not be consistent with, and may even be at odds with, the tenets of the religion to which the employee asserts to subscribe.

  • Whether the accommodation is a particularly desirable benefit that is likely to be sought for nonreligious reason. The guidance does not address the fact that this would seemingly be the case as to nearly every COVID-19 vaccine exemption request, given the numbers of persons who object to the COVID vaccine for non-religious reasons.
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request for secular reasons).

  • Whether the employer otherwise has “reason to believe” that the request is not for religious reasons. The EEOC provides no specifics as to facts that might give an employer “reason to believe” that a request insincere.

Undue hardship is a “minimal” burden, and burden may be measured monetarily but also by impact on workplace safety. With respect to undue burden, the key takeaways from the guidance include:

  • Before asserting an undue hardship defense, employers must consider all potential accommodations and whether they are reasonable in the case at hand, including telework or reassignment. Interestingly, the guidance does not specifically mention regular COVID-19 testing, although it states that employers may rely on current CDC recommendations when assessing what is available.
  • An undue hardship exists when the employer must bear more than a “de minimis,” or minimal, cost. Costs include not only monetary costs, but safety-related costs such as the risk of COVID-19 spread at the workplace.

Relevant considerations in assessing safety-related burden include:

  • Whether the employee works outdoors or indoors
  • Whether the employee works in a solitary or group setting
  • Whether the employee has close contact with others, especially medically vulnerable persons
  • The number of employees who are also seeking exemptions from the mandate or who will need an exemption
  • The number of employees who are fully vaccinated
  • How many employees or nonemployees physically enter the workplace
  • While it is not enough to merely assume that additional employees might seek an exemption in the future, the employer may take into account the cumulative cost or burden of granting exemptions to other employees

Employers may discontinue an exemption if relevant circumstances change. An exemption may be discontinued if no longer “utilized for religious purposes.” Or it may be discontinued if it subsequently poses an undue hardship due to changed circumstances, although the employer should explore whether other accommodations are available.

Open Questions

  1. How should employers decide whether a belief is “sincerely held” when the facts indicates that the employee has not consistently adhered to it? This is the scenario presented by many of the religious exemption requests employers have received to date based on the allegation that fetal cell lines are used in the testing or development of the vaccines, or that the employee has a religious objection to vaccines in general. As to many of these requests, it does not appear that the employee has previously declined other vaccinations, medicines, or medical treatments on these bases. The guidance declines to articulate any bright lines and leaves it to employers to determine whether behavior is so inconsistent that the belief is not sincerely held. As employers navigate this issue, they should keep in the mind that the new guidance acknowledges that a sincerely held religious belief only recently formed (possibly, even in response to the onset of employer-imposed vaccination mandates) is nevertheless entitled to accommodation.
  2. At what point would cumulative monetary cost – such as the cost of testing or related costs – constitute an undue burden? The guidance does not offer specifics. Nor does the guidance address the circumstance in which an employer is able to accommodate some, but not all, requests. The EEOC takes no position in the guidance, for example, on a situation in which an employer that can safely accommodate 20 requests for exemption receives 26 requests. Is the employer to grant 20 requests and deny 6, or should it deny all requests based on cumulative-burden analysis? Likewise, the guidance does not explain the interplay between an employer’s obligation to accommodate based on disability and its obligation to accommodate based sincerely held religious belief. If there is a limit on the number of accommodations that can be safely made, are all requests for legal accommodation, no matter what the basis, to be given similar consideration and “priority”?
  3. Is the risk that unvaccinated employees have a higher likelihood of spreading COVID in the workplace – standing alone – sufficient to show “undue hardship? The guidance indicates that relevant factors for undue hardship due to safety concerns include, among others, the concentration of employees and the number of other unvaccinated employees. But it does not identify the concentration of unvaccinated workers that would raise the threat level to an undue hardship, nor does it address the effect of other safety measures, such as masking, distancing, and testing, instead leaving it to employers to assess the issues. This issue is particularly important with respect to employers taking the position that some, but not all, requests for accommodation can be safely granted. If an employee who was not accommodated asserts a claim, the employer will doubtless be called upon to explain how it determined the limit on the number of accommodations that could be made and how it determined which employees would be accommodated and which would not.
  4. Is reaching a sufficiently high concentration of unvaccinated workers sufficient only to deny future requests for exemption, or does it provide a basis for revoking previously granted requests? The guidance makes clear that changed circumstances are a basis for discontinuing previously granted exemptions. But it does not identify the particular changed circumstances that might warrant revoking earlier granted requests.
  5. If an employer accommodates an employee by exempting the employee from a vaccine mandate but requires instead weekly COVID-19 testing, must the employer pay for the testing? Employers continue to struggle with this issue, but the guidance is silent both about testing as an alternative safety measure and, specifically, about responsibility for the cost of testing. There is indication that OSHA’s forthcoming Emergency Temporary Standard on COVID-19, applicable to larger employers (100 employees or more), will answer this question.

The Bottom Line for Employers

Until recently, requests for religious accommodation were relatively rare. And when such requests were made, they were relatively straightforward—e.g., an employee requesting scheduling modifications in order to attend religious services. Requests for exemption from COVID-19 vaccine mandates present an entirely different bundle of issues, and more is at stake because it often is the case that many employees are making the same or very similar accommodation requests. Because there are almost no bright-line rules with respect to analyzing religious accommodation requests, it is critical that an employer implement a uniform process for the receipt, consideration, and disposition of requests and involve in the process HR professionals and inside and outside counsel well versed on the applicable legal principles.