The Modern Workplace

On March 1, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on how best to approach employee accommodation requests for those opposed to employer COVID-19 vaccine requirements because of their religious beliefs. 

As a quick refresher, the EEOC enforces Title VII which prohibits employment discrimination based on religion.  Employers are required to reasonably accommodate applicants and employees who have sincerely held religious beliefs to enable them to perform the essential functions of their jobs and where their beliefs may conflict with company policy.  Although similar to how employers approach disability accommodations, employers have a significantly lower burden when demonstrating that granting such a request would pose an undue burden for the employer.

The updated guidance from the EEOC provides the following additional details for employers:

• Although the onerous is on employees to ask for a religious accommodation, the EEOC recommends, as a best practice, that employers provide all applicants and employees with information about requesting religious accommodations and provided its own internal form as an example.
• Expanding on previous guidance, the EEOC emphasizes that employers may ask employees to explain, “how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement,” in order to assess whether the belief is actually a religious belief, and therefore protected. The EEOC notes that objections based on personal preference or political in nature are not The EEOC does note, however, that often times the employee’s religious and political beliefs may overlap which “does not place it outside the scope of Title VII’s religious protections.”
• An employer’s undue burden analysis cannot rely on “speculative or hypothetical” arguments. Instead, in determining whether or not an accommodation would result in more than a minimal cost to the employer, the employer should consider the following:
  • Does the employee work outdoors or indoors?
  • Does the employee work in a solitary or group work setting?
  • Does the employee have close contact with other employees or members of the public (especially medically vulnerable individuals)?
  • How many employees are seeking a similar accommodation? What is the cumulative cost or burden on the employer?
  • How will current CDC guidance impact available accommodation options?
• Employers that grant some employees a religious accommodation from COVID-19 vaccination requirements are not required to grant all similar requests. The determination is fact specific for each individual employee and should include an analysis as to the type of workplace for the employee, the employee’s individual duties, the employee’s location, etc.
• Employers may reassess the original accommodation to an employee based on changes in circumstances. Employers have a right to discontinue certain accommodations if the accommodation is no longer utilized for a religious purpose or, after a period of time, poses an undue hardship on the employee.  However, the EEOC cautions that employers should have a discussion with the employee about the accommodation prior to revoking it.

Although the EEOC’s updated guidance confirms an employer’s right to adopt a stricter approach to granting vaccine-related accommodations, it is important to remember that the decision whether or not to grant or deny a particular accommodation request must be fact specific and directly related to the individual employee’s request.  Employers should make sure to document the factual analysis that was used when determining whether to grant a religious accommodation request.