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Is a Global Pandemic a De Minimis Hardship? EEOC Guidance on COVID-19 and Religious Accommodation
Tuesday, April 28, 2020

As government officials at all levels continue issuing guidance on best practices for employers to help mitigate the spread of COVID-19, some jurisdictions are taking the first steps to “reopen” their local economies. Before the coronavirus, employers were increasingly facing issues of religious accommodation requests to avoid influenza vaccines. As employees return to work undergoing temperature checks and possibly COVID-19 testing via swabs and blood draws, and healthcare professionals work to potentially develop a COVID-19 vaccine, employee religious accommodation requests will likely continue if not increase during this time of change.

Religious Accommodations Rubric Generally

Under Title VII of the Civil Rights Act of 1964, the general religious accommodation process is well-established: employees first bear the duty of communicating the need for a religious accommodation to the employer. This dialogue could include an objection to an employer’s policy or practice on religious grounds, such as a religious tenet against blood draws for testing. Because employees do not have an  unfettered rights to express religion in the workplace, employers may restrict an employee’s expressions that disrupt or negatively impact operations.

Unlike requests for accommodations for disabilities under the Americans with Disabilities Act, religious accommodation requests under Title VII are considered under a different and lower standard. Employers do not need to provide a religious accommodation that results in more than a de minimis burden, either economic or non-economic. However, an employer may  not generally deny an accommodation based on a “speculative” burden.

The Rise of the Anti-Vaccination Movement

Most often in the healthcare sector and/or sectors with international travel—but spreading into other sectors in today’s changing world—employers have required employees to receive vaccinations and/or demonstrate immunity for the safety and health of themselves, patients, and co-workers. The analysis of whether an employee can be exempt from vaccination requirements turns initially on whether anti-vaccination beliefs are actually religious. Though courts have held that moral commandments to not harm one’s own body do not rise to the level of “religion,” they have also found Christian Science and veganism to be religions with beliefs that could warrant an accommodation. Many vaccines are developed from, or may contain, animal byproducts. Though some courts have refused to resolve the question of whether veganism is a religion or rather just a philosophical belief, at least one district court denied a motion to dismiss in order to allow a plaintiff to demonstrate that veganism qualified as a religion.

COVID-19 Issues

As employees return to work in a variety of settings, including corporate headquarters, employers may be required to or choose to institute increased hygiene and sanitation policies, as well as continued physical distancing. Beyond that, employers will also be encouraged—or required—to institute policies that promote COVID-19 testing, COVID-19 vaccines (if they are developed), and the use of personal protective equipment (PPE).

  1. Vaccines

The U.S. Occupational Safety and Health Administration (OSHA) takes the position that employers may mandate that all employees receive a seasonal flu vaccination. When and if the COVID-19 vaccine has been developed, tested and rolled out for specific populations or the general population, OSHA will likely take a similar position given the scope and magnitude of the current pandemic across the United States and the world. On the other hand, the Equal Employment Opportunity Commission (EEOC) firmly advocates against mandatory flu shot policies and instead recognizes the potential accommodations that employees may request under the Americans with Disabilities Act (ADA) and religious objections they may have under Title VII.

In the newly-issued EEOC guidance on COVID-19, the EEOC treats a future COVID-19 vaccine like existing vaccines. For either seasonal influenza or COVID-19 vaccines, “[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability.” Additionally, the EEOC states that an employee may seek a religious exemption for a COVID-19 vaccine if “the employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from” receiving the vaccine.

  1. Protective Gear

Another potential issue that employers will face is balancing local orders to use face coverings or other PPE with religious accommodations. The EEOC states that in terms of protective gear, if an employee requests “a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship.” If an accommodation request is granted, this might take the form of using a different type of face covering or increased physical distancing to account for the lack of face covering as an accommodation

  1. Mandatory Testing

Finally, the EEOC’s new guidance states that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” Though the EEOC is taking the position that mandatory testing does not violate the ADA, the agency is silent as to the effect of mandatory COVID-19 testing on Title VII. Depending on the method of testing available (including blood tests), employees may object to testing on religious grounds, so employers should be prepared.


Until a vaccine is approved, the best practice continues to be requiring (where possible) or encouraging (where needed) all employees to observe social distancing, good hygiene, sanitation procedures, and all other guidance from appropriate authorities. The EEOC agrees that when a vaccine becomes available for COVID-19, “employers should consider simply encouraging employees to get the” vaccine. If an employee objects to vaccines, testing, or the use of PPE on religious grounds, employers must only provide an effective, reasonable accommodation that does not cause more than a de minimis burden. Potential COVID-19 exposure to co-workers and customers would likely exceed the de minimis standard, but employers should nonetheless continue communicating with employees to understand the underlying reason for the request.

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