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EEOC Releases Updated Religious Exemption Guidance

All, COVID-19, Employee Benefits

On October 25, 2021 the Equal Employment Opportunity Commission (EEOC) updated their FAQs regarding COVID-19. Specifically, this guidance focuses on the religious objection to the COVID-19 vaccination. 

Highlights of the EEOC Updated FAQs are below:

Q: Must employees use specific language to request a religious accommodation?

A: No. The guidance states there are no “magic words” employees must use to claim the religious objection. Employers should provide contact information to claim the accommodation and employees should let the employer know there is a religious conflict with a vaccination requirement based on sincerely held beliefs.

Q: Does an employer have to accept the religious objection based on the employee’s simple request or can the employer ask for more information to substantiate the objection?

A: Generally, employers can assume that the objection is based on sincerely held religious beliefs. However, an employer can ask for additional supporting information to support the request if the employer has an objective basis for questioning the employee’s objection. Employees must cooperate with the employer’s reasonable request for additional information or risk losing any subsequent claim that the employer denied the accommodation.

The guidance points out that the definition of “religion” under Title VII does protect non-traditional religious beliefs that may not be familiar to the employer. Title VII does not, however, protect social, political or economic views or personal preferences.

Also, the sincerity of an employee’s religious beliefs is typically not an area of question unless related to the individual’s credibility. Factors which may undermine employee credibility are:

  • 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 sought for non-religious reasons;
  • Whether the timing of the request renders it suspect; and
  • Whether the employer has reason to believe the accommodation is sought for non-religious reasons

Employers can request an explanation from the employee on how the religious belief conflicts with the COVID-19 vaccination requirement. Employers should not assume that an employee is insincere because some of the employee’s practices deviate from the tenets of the employee’s beliefs or because the employee adheres to certain practices but not others. All religious objections should be reviewed on an individual basis.

Q: When is a religious accommodation considered an undue hardship for the employer?

A: Employers should consider all reasonable accommodations for employees claiming a religious objection, including telework and reassignment. However, if an employer demonstrates an inability to reasonably accommodate the employee’s religious belief against vaccination, then the employer does not need to provide the accommodation. According to the U.S. Supreme Court, requiring an employer to bear more than a minimal cost to accommodate due to religious belief is an undue hardship. Undue hardship may be situations where the accommodation would impair workplace safety, diminish efficiency in other positions, or cause co-workers to carry the accommodated employee’s share of hazardous or difficult work.

Determination of undue hardship is a fact specific determination. Factors to consider would be: whether the employee works indoors or outdoors, works alone or in a group setting, or has close contact with other employees and members of the public. In addition, employers can consider how many religious objection accommodations are needed.

Q: Is an employer required to provide the preferred religious accommodation if there are other more effective accommodations that do not cause an undue hardship to the employer?

A: Employers may choose which accommodations to offer. Employers may consider the employee’s preference if more than one accommodation is available. However, the employer is not obligated to provide that accommodation. Employers may rely on CDC recommendations when deciding on effective accommodations.

Q: If an accommodation is granted, is the employer allowed to later reconsider that accommodation?

A: Employer may take into account changing circumstances over time in evaluating undue hardship and religious accommodations. Employers should discuss with employees any concerns regarding a continuing religious accommodation before revoking the accommodation.

Key Takeaways

Employers do have some flexibility in the way they approve religious objections to COVID-19 vaccination mandates, however they would be well-served to have a thorough and consistent process for those exemptions which are approved by their legal counsel. This guidance from the EEOC is a strong foundation for updating your current process or putting a new process in place.

The information provided is a summary of laws and regulations relating to employee benefit plan compliance. This information should not be construed as legal advice. In all cases, employers should consult with their own legal counsel.

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