Many employers are now issuing a mandatory policy for employees to receive a COVID-19 vaccination to further protect the workplace and others from spreading the virus.  As a result, many employees are objecting to receiving the COVID-19 vaccine under Title VII as a religious accommodation.

Covid Vaccine

Recently, on October 25, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers materials to weigh in on this controversial issue. The full guidance can be found here: EEOC Guidance.

Below is a mere summary and analysis of the key points addressed.

Employees Need to Report a Religious Objection to Receiving the COVID-19 Vaccine

Employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer if there is a conflict between the employee’s sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

To assist with this requirement, employers should provide information about whom to contact, and the procedures (if any) to use, in order for an employee or applicant to request a religious accommodation.

Employers May Ask for Additional Information

Generally speaking, an employer is supposed to assume that an employee’s request for a religious accommodation is based on “sincerely held religious beliefs.”

However, employees should not assume that their employer already knows or understands the religious nature of their belief. The EEOC guidance provides, “if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, then the employer would be justified in making a limited factual inquiry and seeking additional supporting information.”

IMPORTANT: If an employee does not cooperate with an employer’s reasonable request for verification, then the employee may lose on a later claim alleging that the employer improperly denied an accommodation.  

Factors to Consider When Determining an Employee’s Credibility 

The EEOC guidance provides that “objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as ‘religious beliefs’ under Title VII.”

The sincerity of an employee’s asserted religious beliefs are not usually in dispute but mainly determined through factors surrounding individual credibility. Such factors should be evaluated on an individual basis only and may include:

  • whether the employee acted in a manner inconsistent with the professed belief;
  • whether the requested accommodation is a particularly desirable benefit likely to be sought for nonreligious reasons;
  • whether the timing of the request is questionable (does it follow an employee’s earlier request for the same benefit for non-religious reasons); and
  • whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. The EEOC makes it clear that if the employee’s objection to a COVID-19 vaccination requirement is not determined to be religious in nature, or is not sincerely held, then the employer is not required to provide an exception to the vaccination requirement as a religious accommodation under Title VII.

Employers do NOT Have to Grant all Religious Accommodation Requests

The United States Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.  Some factors to consider are:

  • if the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
  • whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors,
  • whether the employee requesting a religious accommodation to a COVID-19 vaccination works in a solitary or group work setting or has close contact with other employees or members of the public (especially medically vulnerable individuals),
  • the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer),
  • 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.

If there is more than one reasonable accommodation that would not cause an undue hardship under Title VII, then the employer may choose which accommodation to offer. Employers should consider all possible reasonable accommodations, including telework and reassignment.

Since this issue is fact specific for each individual requesting such an accommodation, employers should discuss each specific situation with their attorney to ensure that the issue of religious accommodation is properly addressed.

This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Office of Regina Sarkis, PLLC.