EEOC Updates Vaccine Guidance but Critical Questions Remain Unanswered

It has been several weeks since the Biden administration introduced a vaccine mandate for all federal contractors, requiring that employees be vaccinated by December 8, 2021, unless they qualify for a religious or medical exemption.  The administration has promised that OSHA will enforce a similar mandate for private sector employers with more than one hundred employees – more than two thirds of American businesses. The OSHA rule was delivered for White House review on October 12, 2021.

For the most part, employers have been receptive, with some reservation.  In a tight labor market, some employers are concerned they will lose employees if enforcing such a mandate.  The flip side of that equation is that a fully vaccinated workforce greatly reduces quarantine and infection-related absences, increases workplace safety, and mitigates the need for additional safety measures and the cumbersome administration required to enforce them.  There remain, however, very serious concerns over how employers should handle accommodation requests.  The Equal Employment Opportunity Commission (EEOC) offered updated Q&A guidance on October 25, 2021, but again failed to offer significant clarity to this issue or to address employers’ most pressing concerns.  (Click here to read McMahon Berger’s recent blog post discussing specific details of the recent update).

At present neither the Biden Administration nor any federal agency has offered meaningful guidance on how to deal with accommodation requests from those who do not wish to receive a Covid vaccine.  Instead, the EEOC has essentially restated vague accommodation guidelines published years ago.  This is a serious concern as the prior administrative and judicial history in this area offers little assistance that is of use in the face of a global pandemic.  The unprecedented nature of this situation has not stopped agencies such as the EEOC from merely pushing back with the same guidelines which were created for accommodation requests pre-pandemic.  So how should employers deal with accommodation requests from employees seeking exemption from mandatory Covid vaccination policies?

The Familiar: Requests for Disability Accommodation

First, the easier one: disability accommodation requests.  Most employers are well-versed in how to handle requests for accommodation under the Americans with Disabilities Act (ADA).  Employers who are presented with a request for accommodation must engage in an interactive dialogue process with the employee in order to determine whether the employee is entitled to an accommodation, and what accommodation options would be reasonable.  Most employers are familiar with the ADA interactive process and will not find that Covid presents truly unique challenges.  Additionally, few medical conditions truly prevent an employee from receiving a vaccine, and few physicians will suggest that a patient with a disability not be vaccinated unless there really is a concern.

One area of disability accommodation which does present unique challenges regarding Covid is the concept of direct threat.  “Direct threat” is essentially a defense which an employer may use when presented with a claim that it discriminated against, including failing to accommodate, an employee with a disability.  The basis of this defense is that the employee presents a significant threat to themselves or others.  Generally, employers considering taking any action on this basis should exercise a great deal of caution.  Before Covid the most common situations in which employers had to consider direct threat was where an employee’s physical or mental condition meant that they presented a significant threat to their own safety or the safety of others by being present in the workplace.  This could include employees whose mental state made them appear to be dangerous or employees whose physical condition created safety risks for themselves, coworkers, customers, or others.

The question that many employers now find themselves asking is whether an unvaccinated employee presents a significant risk to their own safety or the safety of their coworkers by being present in the workplace, and whether that risk cannot be mitigated by granting a reasonable accommodation.  Major airlines have taken the position that unvaccinated, customer-facing employees present a threat to their own safety and the safety of others in that they could more easily contract or spread Covid-19.  The airlines in question have granted an accommodation of unpaid leave, and have argued that other accommodations, such as frequent testing for Covid to ensure employees are not infected, would require such a great cost to implement that they are unreasonable.  Of course, these policies are already subject to legal challenges, and it will likely be years before state and federal courts provide any legal clarity.  Those cases might also resolve without ever reaching judicial determinations as to the legality of the underlying practices. Even when they do so, there is the possibility of inconsistent results amongst federal courts and those of various states.  This uncertainty is a theme which is repeated throughout any legal discussion of the accommodation issue.

Now into Uncharted Waters: Religious Accommodation

Unlike medical accommodation requests, which are governed by the ADA, freedom from religious discrimination is guaranteed by Title VII of the Civil Rights Act of 1964.  Many areas of discrimination law, including other protections guaranteed by Title VII, have an extensive history of case law from which to draw guidance.  Religious discrimination cases, on the other hand, are comparatively uncommon.  In the past, religious accommodation requests most often dealt with issues such as scheduling on days of religious observance or requests to allow religious attire in the workplace.  These requests are straightforward compared to the situation presented by Covid.

Title VII prohibits employment discrimination based on religion. This includes refusing to accommodate an employee’s sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship.  “Religion” is defined very broadly under Title VII.  It not only includes tenets of large, organized religions, but also the practices or beliefs of small sects, or even individual moral and ethical beliefs or practices which are essentially religious in nature, so long as they are based on a sincerely held belief.  Even so, not all requests for religious accommodation will merit the protections of Title VII.  The EEOC has clarified that social, philosophical, or political preferences, as well as personal preferences, do not fall within the protections of Title VII.  With that in mind, when an employee requests a religious accommodation to a policy requiring vaccination from Covid-19, how does an employer determine whether the employee is entitled to such a protection under federal law?

As a starting point, an employer should engage in an interactive process with the employee similar that used for accommodation requests under the ADA.  The EEOC has stated that an employer should “generally” assume that a stated religious belief is sincerely held.  Before Covid this seemed simple enough, but polarization regarding vaccines has turned this suggestion on its head.  For instance, very few major religions oppose their practitioners receiving the Covid vaccine.  Even so, a sincerely held religious belief under Title VII need not align with the official positions of an official religion in order to be entitled to legal protection.  For this reason, while few religions actually oppose vaccination, that does not mean that an employee cannot have a sincerely held religious belief which prevents them from being vaccinated.  Even so, it may cause employers to question whether an employee’s purported belief is truly religious in nature or is merely based upon personal preference or social or political concerns.  The politicization of this issue certainly has not helped.  If an employer has a legitimate reason to question the sincerity of an employee’s stated belief, it may ask additional questions in order to determine if the belief is sincerely held and is religious in nature, as defined by Title VII.  While a sincerely held religious belief need not be tied to any particular religion, it is important to note that political, social, or philosophical opinions, as well as personal choices, are not considered to be religious beliefs which are entitled to legal protection under Title VII.

Unfortunately, there is no magic formula to determine when a belief is sincerely held.  This is the first key issue on which employers would benefit from additional guidance specific to the circumstances of the pandemic.  Employers are increasingly facing vague requests for accommodation which attempt to tie into a religious framework despite the official bodies of almost no religion actually opposing vaccination.  However, instead of offering guidance on this matter, federal agencies have only repeated the preexisting framework for determining whether religious accommodations are sincerely held and whether they must be granted.  This apparatus is ill-suited to the current Covid reality.

One important point is that the standard for hardship as applied to religious accommodation under Title VII is significantly different than the standard applied for medical accommodation under the ADA.  Under the ADA, employers are required to provide accommodations unless they would be an “undue hardship” to the employer.  Under Title VII, an undue hardship is any accommodation which would cause more than a minimal burden to the employer, which, in theory, is a significantly lower burden. Yet again though, there is little in the way of new guidance defining what an employer must do in order to comply with Title VII and also with the current and forthcoming mandates.

As a result, employers are between a rock and a hard place.  Even if employers are ultimately successful in showing that a requested accommodation was not based upon a sincerely held religious belief, or that an accommodation would be an undue burden, they would still likely need to engage in extremely costly litigation in order to prevail.  Given the current climate and intensity of emotion surrounding vaccination, this can be an extremely contentious issue.  Employers must also consider whether the laws of the state(s) in which they operate offer greater protections for religious beliefs or specifically address the ability to require vaccines.  If state laws are in conflict with federal law, the expectation is that federal law will ultimately control the required outcome, but employers facing such conflicting laws must act with even greater caution.

What Could Federal Agencies Do to Help?

Ultimately, the EEOC and other federal agencies are leaving employers adrift by requiring them to mandate vaccines while not providing any meaningful guidance as to how to administer accommodation requests for those mandatory vaccine policies.  The preexisting framework for analyzing requests was never designed to contemplate such a widespread and socially polarized issue which closely walks the line between ethics and purely personal choice.  Mandating Covid vaccination implicates many issues which, if not truly religious, are close enough to cause major headaches for employers trying to determine whether an accommodation must be granted.  It would be easy enough for federal agencies to issue guidelines which further clarify what elements an accommodation request to the Covid vaccine must include in order to be a sincerely held religious belief.  Similarly, it would be relatively simple for those same agencies to better define hardship in this scenario.  Thus far, they have done neither.

The EEOC has issued guidance in the form of a lengthy Q&A.  Initially offered on September 12, 2021, the agency provided an update on September 25, 2021.  Unfortunately, neither the original publication nor the update offers much substance on the specific challenges posed by the pandemic.   A close reading shows that the Q&A mostly recites the same rules and views espoused in earlier publications on accommodation issues.  For instance, the new answers state that an employer need not grant an accommodation request which is political, rather than religious.  They also reiterate that an undue hardship under Title VII is one which would cause more than a minimal burden to the employee.  Both of these statements have been well known for years.  Very little in the guidance offers an employer with meaningful assistance when considering a vaccine accommodation issue.

The EEOC is not the only federal agency which could provide additional assistance here.  By tasking OSHA with enforcing the vaccine mandate for larger private-sector employers, the administration has expressly recognized that Covid is a workplace safety issue.  With that in mind, OSHA could also provide clarification regarding when unvaccinated employees may present a safety threat in the workplace.  In doing so, the agency could help employers determine when they may deny accommodation requests in order to meet their requirement to maintain a safe workplace.  While OSHA’s rulemaking process usually takes years, the agency could utilize the same expedited “emergency standard” process it is currently using to enforce the private-sector vaccine mandate.  Perhaps OSHA will address this issue once the Emergency Standard mandating vaccines is approved by the White House and comes into effect.  However, given the response from other agencies it would be best to lower any such expectations.

Similarly, the Department of Labor has not yet provided clarity as to whether employers are required to compensate non-exempt employees for time spent outside of work obtaining Covid test results.  Such testing is required for employees who are granted an exemption.  If employees must be compensated for that time it may act as an incentive for employees to seek accommodation rather than acting as an incentive for those same employees to be vaccinated.  The one caveat to this is that if employers are required to pay for testing time, that additional expense could support an argument that the additional cost would be more than minimal for granting exemptions.  Whether that cost would be sufficient to support a denial of accommodation would require a consideration of the specific circumstances involved.  Again, there is no one-size-fits-all approach.

Amidst this uncertainty, industry groups continue to push the administration for greater clarity and guidelines which offer more protection to employers.  We will continue to monitor the situation closely and report any changes in this area.  For now, employers will need to tread carefully with these issues in order to comply with all applicable laws and avoid potential liability.

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.

Learn more aboutMichael Powers
Michael represents the interests of management in all facets of labor and employment law, with an emphasis on employment litigation. He defends employers against discrimination claims brought under both Federal and State laws. He works on behalf of management to investigate and respond to employee claims before administrative agencies.