On Monday, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address religious objections to employer vaccine mandates. The updated guidance provides employers with much-needed advice on navigating the religious accommodation process for employees claiming religious objections to the vaccine, including how to establish the accommodation process, how to assess an employee’s religious objections, and how to determine which accommodations, if any, are required to comply with Title VII. This update is useful for all employers with a COVID-19 vaccine mandate, and particularly so for those covered by the Biden Administration’s recently announced large employer and federal contractor vaccination rules.

Title VII prohibits employers, inter alia, from discriminating against employees by reason of religion. This prohibition extends to an employer’s failure to reasonably accommodate an employee’s sincerely held religious beliefs in the workplace. Previous EEOC and U.S. Department of Labor guidance documents have cautioned that employer COVID-19 vaccine mandates may require exemptions for certain employees with sincerely held religious objections.

The new Q&As lay out a process for addressing employee COVID-19 vaccine exemption requests. This post walks through the steps for what employers should do.

1. Provide employees and applicants with clear instructions for how to request religious accommodations.

The EEOC guidance directs employers to “provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation” exempting them from a COVID vaccination requirement. Employees seeking accommodations need not use any “magic words” like “religious objection” or “Title VII,” but they must notify their employer of the conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. This notification requirement extends to religious conflicts with a particular vaccine or a desire to wait until an alternative version or specific brand of COVID-19 vaccine is available.

2. If needed, make a “limited factual inquiry” into employee claims of religious objection.

Once an employee has requested a religious exemption from the vaccine requirement, the employer can make a limited factual inquiry into the purported objection. The updated guidance provides that employers should “assume” that a request for religious accommodation is based on the employee’s sincerely held religious beliefs. Proceeding on that basis, employers are free to make a “limited factual inquiry” and to “seek[] additional supporting information” about requests where there is an objective basis for questioning either the religious nature or the sincerity of the employee’s belief. The EEOC directs that an employee who does not cooperate with a reasonable request for verification of the professed belief “risks losing any subsequent claim that the employer improperly denied an accommodation.”

In undertaking this inquiry, the EEOC guidance cautions employers that “[r]eligion” under Title VII includes nontraditional religious beliefs that may be unfamiliar to an employer. On the other hand, “religion” under Title VII does not include “social, political, or economic views, or personal preferences.” Thus, an employer’s inquiry into the religious nature of an employee’s objection to the vaccine should be focused on distinguishing whether the objection is religious in nature or merely a social, political, economic, or personal preference.

The EEOC also instructs that an employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” In assessing an individual’s credibility, the EEOC directs employers to consider factors such as 1) whether the employee has acted in a manner inconsistent with the professed belief, 2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons, 3) whether the timing of the request renders it suspect (like if it immediately follows an earlier request for the same benefit for a secular reason), and 4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. As an important caveat, while the EEOC guidance allows that employers may consider inconsistent practices, it cautions that employers “should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.” Instead, the evaluation should be made on an individual basis based on the facts at hand.

3. Assess whether accommodating an exemption request would present undue hardship.

After assessing the employee’s religious objection, the EEOC guidance directs employers to “thoroughly consider all possible reasonable accommodations, including telework and reassignment,” which could accommodate the employee’s request to be exempt from the COVID vaccine mandate. If an employee has expressed a sincerely held religious objection to the vaccine requirement, an employer must provide a reasonable accommodation unless doing so would present an “undue hardship” to the employer.

For purposes of the Title VII accommodation analysis, the EEOC instructs that undue hardship is a burden that imposes more than a “de minimis,” or minimal, cost to the employer. An undue hardship analysis should be an individualized inquiry based on the “particular facts of each situation” and should not rely on speculative hardships, but can include consideration of the cumulative burden of granting all similar accommodation requests. In the employer’s assessment of potential undue hardship because of an accommodation request, the EEOC directs employers to consider:

• Both the direct monetary costs and “the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public” of an accommodation;

• Whether the employee requesting accommodation works outdoors or indoors, in a solitary or group work setting, or has close contact with other employees or members of the public;

• “The type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation;” and

• Whether “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.”

Employers do not need to provide an employee’s preferred accommodation if there are other accommodations that would be effective at removing the religious conflict and that do not present an undue hardship. However, if the employer does not provide the preferred accommodation, the EEOC recommends the employer explain to its employee why the preferred accommodation is not being granted.

An employer who grants some employees a religious accommodation is not required to grant the requests of all employees who seek an accommodation; instead, the employer should conduct an individualized inquiry for each request.

Finally, the guidance provides that once an accommodation has been granted, it can be later reconsidered in light of changed circumstances, including a change in the religious nature of the employee’s request or if the provided accommodation begins to pose an undue hardship on the employer. The EEOC recommends employers communicate with employees about any concerns before revoking or altering a religious accommodation.