Additional EEOC Guidance on Navigating Religious Exemption Requests

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued additional Frequently Asked Questions (FAQs) addressing an employer’s obligation to grant requests for religious exemptions to COVID-19 vaccine mandates. The new FAQs, contained in Section L of the full FAQs, provide helpful insights on addressing some of the questions employers are facing when enforcing vaccine mandates, while leaving others unresolved.

Below are the key takeaways from the new FAQs:

Employees Must Make a Request. Employees must tell their employers if they are requesting an exception to a COVID-19 vaccination requirement due of a conflict between that requirement and their sincerely-held religious beliefs. However, employees do not need to use magic words such as “religious accommodation” or “Title VII” to effectuate the request. As a result, individuals responsible for communicating with employees about a vaccination requirement should know how to recognize an accommodation request from an employee. To avoid confusion or misunderstandings, employers should put in place a procedure for requesting an accommodation and inform their employees of the procedure.

Waiting for a Different Vaccine Can Be an Accommodation. An employee may request, based on a sincerely-held religious belief, to receive only a specific brand of the COVID-19 vaccine, or wait for an alternative version of the vaccine that does not conflict with their religious belief to become available. These requests should be processed in the same manner as other accommodation requests.

Employers Should Assume a Request for Religious Accommodation Is Sincere. In the new FAQs, the EEOC states that employers should assume that a request for religious accommodation is based on a sincerely-held religious belief, unless it has an objective basis for questioning the religious nature or sincerity of a belief. If an objective basis exists, an employer is able to make a limited factual inquiry and seek additional supporting information. The EEOC lists several factors for evaluating whether a belief is sincere, which is “largely a matter of individual credibility,” including: 
 

• Whether the employee has acted in a manner inconsistent with the stated belief; 
  • Note that the EEOC cautions employers that religious beliefs may change over time; and therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.
• Whether the accommodation sought is a particularly desirable benefit; 
• Whether the timing of the request renders it suspect; and
• Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Title VII Protects Nontraditional Religious Beliefs. The EEOC further cautions employers through the FAQs to not assume that a request is invalid simply because it is based on unfamiliar religious beliefs. Nontraditional religious beliefs are protected by Title VII, although employers may ask an employee to explain the religious nature of their belief. Conversely, religious beliefs do not include beliefs based on social, political, or personal preferences, or on “nonreligious concerns about the possible effects of the vaccine.”

Undue Hardship. The EEOC also discusses when it might be an undue hardship under Title VII for an employer to accommodate an unvaccinated employee. Generally, employers are not required to provide an accommodation that would pose an undue hardship on the employer’s operations. An undue hardship may arise if the accommodation would cause more than “de minimis” costs to the employer. Costs to be considered include not only direct monetary costs, but also safety-related costs such as the risk of COVID-19 spread to other employees or the public.  

No One Size Fits All. Approving a religious accommodation request for one employee does not mean an employer is required to approve all religious accommodation requests. Employers can evaluate the specific factual context of each request, considering, for example, 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. While an employer may take into account the cumulative cost or burden of granting accommodations to other employees, the guidance warns that “[a] mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship.”

The Employee’s Choice. An employer does not have to provide the accommodation of the employee’s choice. If there are multiple reasonable accommodations that would resolve the conflict between the vaccination requirement and the employee’s sincerely-held religious belief without causing an undue hardship, then the employer may choose which accommodation to offer.

Accommodations May Be Withdrawn. Re-emphasizing that an employee’s religious beliefs and practices may evolve or change over time, the EEOC notes that an accommodation may be discontinued if it is no longer “utilized for religious purposes.” Additionally, an accommodation may be withdrawn if it subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

In additional to these new FAQs, on October 28, 2021, the EEOC provided an example of the EEOC’s internal form for employees to request religious accommodations from the vaccine mandate. The EEOC notes that, “[a]lthough [its] internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.” Click here to view the form. 

While the new FAQs clarify several questions with which employers have been grappling, the EEOC has left several questions open. Particularly, whether an employer must incur the cost of weekly testing, if it provided as an accommodation, or, if the cumulative expense of weekly testing constitutes an “undue burden.” We will continue to monitor and provide updates on any significant changes. 

If you have questions about the EEOC’s FAQs, please contact Tami Earnhart, Joana Ampofo or any member of Ice Miller’s Labor, Employment and Immigration Practice Group. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.