COVID-19 Vaccination Religious Exemption Requests: 5 Key Takeaways From the EEOC’s Updated Technical Assistance

On October 25, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance related to the COVID-19 pandemic. The updated and expanded COVID-19 technical assistance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” adds a new section (section L) with information related to requests by applicants or employees seeking to be excused from COVID-19 vaccination requirements due to sincerely held religious beliefs, practices, or observances.

Here are five key takeaways from the updated technical assistance:

1. Employee Notification

The EEOC’s COVID-19 technical assistance confirms that an employee or applicant must notify his or her employer if the employee or applicant is requesting an exception to a COVID-19 vaccination requirement due to a sincerely held religious belief. The EEOC has set forth no specific language for the notice.

2. Assessing Religiousness and Sincerity

The technical assistance continues to take the EEOC’s prior position that “[g]enerally, under Title VII [of the Civil Rights Act of 1964], an employer should assume that a request for religious accommodation is based on sincerely held religious belief.” If an employer has an “objective basis” for questioning the religious nature or sincerity of a belief, then it “would be justified” in making a “limited factual inquiry” and “seeking additional supporting information.” The technical assistance explains that although Title VII protection extends to “nontraditional religious beliefs,” it does not require accommodation for “social, political, or economic views, or personal preferences.” (Emphasis added.)

3. Considering Alternative Arrangements

The technical assistance indicates that “[i]n many circumstances, it may be possible [for an employer] to accommodate [an unvaccinated employee] seeking reasonable accommodations for [his or her] religious beliefs, practices, or observances,” without it imposing an undue hardship, by considering accommodations such as telework and reassignment to a vacant position.

4. Undue Hardship

The technical assistance also discusses when it might be an undue hardship under Title VII to accommodate an unvaccinated employee. The EEOC explains that deciding whether an undue hardship exists depends on “the particular facts of each situation” and that an employer “will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.” The technical assistance suggests that potential considerations might include whether the employee requesting a religious accommodation works outdoors or indoors, works in a solitary or group work setting, or works in close contact with other employees or members of the public (“especially medically vulnerable individuals”).

Another relevant consideration, according to the technical assistance, is the number of employees seeking a similar accommodation and the cumulative cost or burden on the employer. Although an undue hardship because of cumulative cost or burden of granting accommodations is not one to be readily anticipated and an immediate basis upon which to deny an accommodation, it may become a fact that changes the burden as the number of requested accommodations increases.

5. Further Consideration

The technical assistance confirms that if an employer grants a religious accommodation to an employee, it may reconsider the accommodation later and “has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes” or poses an undue hardship “due to changed circumstances.”

The EEOC’s latest update to the technical assistance comes as the Occupational Safety and Health Administration’s COVID-19 emergency temporary standard, which would require vaccination or weekly testing of workforces with 100 or more employees, remains under review at the Office of Information and Regulatory Affairs.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.