The Equal Employment Opportunity Commission’s Oct. 25 updated guidance finally explains factors employers should consider when deciding whether to grant an employee’s request for exemption based on a religious belief from a mandatory Covid-19 vaccination policy. based on a religious belief.
Questions have abounded regarding the scope of an employer’s obligation to provide accommodation to employees requesting exemption from company vaccine mandates since the EEOC first issued guidance in December 2020, stating that employers generally may require their employees to become vaccinated against Covid-19.
These questions will become all the more relevant in light of the Occupational Safety and Health Administration’s new, long-awaited 490-page, rule requiring private businesses with 100 or more employees to implement either a mandatory vaccination policy or a policy requiring employees to undergo weekly Covid-19 testing and wear a face covering at work.
This new development makes it all the more important for employers to have a plan in place for navigating Covid-19 vaccine exemption requests, as employers likely will be receiving even more exemption requests over the coming weeks and months.
Legal Rights to Exemptions
The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII) require employers to reasonably accommodate employees who either have a disability or a sincerely held religious belief, which prevents them from being vaccinated.
Practically speaking, this means that once an employer is on notice that an employee’s disability or sincerely-held religious belief prevents the employee from being vaccinated, the employer must, at a minimum, engage in an interactive process with the employee to determine if a reasonable accommodation can be made without posing an undue hardship on the employer.
Should an Employer Grant a Religious Exemption?
In regard to religious exemptions under Title VII, questions have persisted regarding the types of “religious beliefs” employers must accommodate. The EEOC’s updated guidance finally explains the factors employers should consider when deciding whether to grant an employee’s request.
Specifically, the EEOC notes that because the definition of “religion” under Title VII protects “nontraditional religious beliefs that may be unfamiliar to employers,” an employer should not assume a request is invalid simply because the request is based on a belief that is “unfamiliar” to the employer.
Generally speaking, employers should presume that a request for an accommodation based on a religious belief is sincere. However, if the employer possesses an “objective basis” for doubting the “religious nature or the sincerity” of the employee’s belief, then the employer may make a “limited factual inquiry” and seek additional information in order to verify the legitimacy of a request.
Factors that may undermine the credibility of an employee’s request include:
- whether the employee has acted in a manner inconsistent with the professed belief;
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
- whether the timing of the request is suspect (e.g., follows an earlier request for secular reasons); and
- whether the employer has a reason to believe the accommodation is not sought for religious reasons.
In considering the foregoing factors, the employer also may ask for an explanation of how the employee’s religious belief conflicts with the employer’s Covid-19 vaccine requirement. No one factor is determinative, and each request should be considered on an individual basis.
Ultimately, if the employer determines that the employee’s objection to the Covid-19 vaccine is not religious in nature, or not sincerely held, the accommodation request may be denied.
Exemptions for Some Don’t Mean Exemptions for All
The EEOC guidance further explains that if an employer grants a religious exemption to some employees, the employer does not necessarily have to grant exemptions for all employees. The determination of whether a proposed accommodation imposes an undue hardship will depend on the specific factual context, which may vary depending on the employee’s position or the burden granting additional accommodations will have on the employer.
Finally, the guidance explains that if an employer grants a religious accommodation to an employee, and it later is either not utilized for religious purposes or subsequently poses an undue hardship on the employer’s operations due to changed circumstances, the employer has the right to discontinue the previously granted accommodation.
However, as a best practice, employers first should discuss any concerns with the employee and consider whether there are alternative accommodations that would not impose an undue hardship, before discontinuing a previously granted accommodation.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
William J. Tarnow is chair of Neal, Gerber & Eisenberg’s Labor & Employment practice group and a member of the firm’s executive committee. He is a litigator who manages employment-related disputes before federal and state courts and administrative agencies.
Alexis M. Dominguez is a partner in Neal, Gerber & Eisenberg’s Labor & Employment practice group. He has broad experience defending employment discrimination, wage and hour, and restrictive covenant claims.
Alissa J. Griffin is an associate in Neal, Gerber & Eisenberg’s Labor & Employment practice group where she focuses on advising clients on employee-related legal issues.