On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) posted updated and expanded guidance in their ongoing COVID-19 technical assistance document. This new guidance addresses questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity laws, specifically Title VII of the Civil Rights Act of 1964. The EEOC notes that, although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious freedom in some circumstances, their technical assistance only describes employment rights and obligations under Title VII.
Must Employees Tell Their Employer They Are Requesting a Vaccination Mandate Exemption Based on Religious Objections?
The EEOC writes in their technical guidance that employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”). These are considered requests for a “religious accommodation” or a “reasonable accommodation” under Title VII.
Must Employees Use Any Specific Words or Phrases to Request a Religious Accommodation or Reasonable Accommodation under Title VII?
The EEOC confirms that, when making a request for a religious accommodation or a reasonable accommodation, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.
The EEOC states that it is a best practice for an employer to provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.
Must Employers Accept an Employee’s Assertion of a Religious Objection to a COVID-19 Vaccination at Face Value? What Else Can an Employer Do?
According to the EEOC, under Title VII, an employer should generally assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.
What If an Employee Refuses to Cooperate with a Request for Verification?
The EEOC’s guidance states that an employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.
Can an Employee Claim Protections for Social, Political, Economic Views, or Personal Preferences?
No, under Title VII the definition of religion protects nontraditional religious beliefs that may be unfamiliar to employers, but it does not protect social, political, or economic views, or personal preferences. Such objections do not qualify as “religious beliefs” under Title VII and would not require an employer to provide an exception to a vaccination requirement.
What Factors Could Undermine an Employee’s Credibility Pertaining to Sincerity of Religious Belief?
Some facts that could undermine an employee’s credibility include:
- whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
- whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
According to the EEOC these factors may be considered either alone or in combination.
What About Prior Inconsistent Conduct?
In some cases, an employee’s prior conduct may seem inconsistent with the question of sincerity. However, while that is still relevant to the question of sincerity, the EEOC notes that degree of sincerity and adherence may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may still be sincerely held.
What if Providing the Religious Accommodation Would be an “Undue Hardship?”
If an employer can demonstrate that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. 42 U.S.C. § 2000e(j).
The EEOC indicates that an employer should consider all possible reasonable accommodations, including telework and reassignment, before it determines it would be an undue hardship to reasonably accommodate an employee’s religious belief.
The EEOC’s guidance notes that “Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”
Employer’s should consider this issue using a fact specific and case by case analysis, preferably with the advice of counsel.
Does an Employer Have to Grant the Religious Accommodation Preferred by an Employee?
Not under Title VII. An employer may choose between more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief. If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.
Does an Employer Have the Ability to Reconsider Religious Accommodations After Granting Them?
The EEOC indicates that an employer may reconsider religious accommodations as the obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances. The EEOC notes that employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations. Employers should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.
Main Takeaways and Thoughts for Employers:
- The EEOC’s guidance on these issues applies primarily to Title VII, and not to state or local laws. Therefore, employers should also consider the application and impact of state and local laws when an employee makes a request for a religious accommodation.
- The EEOC’s guidance clearly envisions a conversation between employer and employee about religious accommodations that begins with the assumption that the employee’s religious belief is sincerely held.
- Employees and applicants are under an obligation to inform employers if they are seeking an exception to a COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance. However, the employee does not need to use any “magic words” to make the request.
- Social, political or economic views, or personal preferences of employees are not protected under Title VII. However, employers should be particularly careful not to confuse a religious belief with a social, political or economic view, or personal preference.
- Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation. However, employers should be extremely careful and discuss the applicability of undue hardship with legal counsel before moving forward with such a determination.
For more in-depth coverage on this same topic, please click here so see the blog post by my partner, Michael S. Powers.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
