The U.S. Equal Employment Opportunity Commission (EEOC) recently updated and expanded guidance related to the COVID-19 pandemic, addressing questions about objections to employer COVID-19 vaccine requirements.
As previously reported, both the EEOC and the California Department of Fair Employment and Housing (DFEH) have stated that private employers may implement a mandatory vaccine policy, so long as they don’t run afoul of federal and state discrimination laws. This means potentially accommodating an employee’s or applicant’s request for accommodation related to their disability or sincerely held religious belief.
The new EEOC guidance provides more information about how Title VII of the Civil Rights Act of 1964 applies when an applicant or employee requests an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely held religious beliefs, practices or observances.
“This update provides employers, employees, and applicants with important assistance when navigating vaccine-related religious accommodation requests,” said EEOC Chair Charlotte A. Burrows in a press release. “Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19.”
The EEOC guidance states that employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance. As is usually the case with accommodation requests, they don’t need to use any magic words such as “accommodation.” They do, however, need to make it clear to the employer that there is a conflict between their sincerely held religious belief and the employer’s vaccination requirement.
Generally, employers should assume a request for religious accommodation is based on a sincerely held religious belief. However, according to the EEOC, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a “limited factual inquiry and seeking additional supporting information.” The EEOC provides some factors and examples for employers to consider; however, employers with strong questions about the employee’s religious belief should consult with legal counsel before requesting further information from an employee based upon a religious accommodation request.
Once an employer knows the employee has a protected disability or religious belief, both the EEOC and the DFEH instruct the employer to engage in a good faith, interactive process to determine if there’s a reasonable accommodation for the employee’s inability to receive the vaccine.
The EEOC guidance clarifies that while Title VII requires employers to consider requests for religious accommodations, it doesn’t protect objections or accommodation requests based on other grounds such as social, political or economic views, or personal preferences.
Some unique circumstances apart from a clear disability or a sincerely held religious belief may warrant careful consideration. For example, the EEOC guidance addresses the question of what to do if an employee chooses not to receive the vaccination due to pregnancy. In this case, the EEOC says the employer must ensure the employee is not being discriminated against compared to other employees with a similar ability or inability to work. This means a pregnant employee may be entitled to job modifications, including remote work, changes to schedules, etc. to the extent those modifications are provided for other employees to avoid unlawful disparate treatment.
With respect to accommodation requests, employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation. Courts have found Title VII undue hardship where, for example, 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.
Accommodation requests and undue hardship determinations are complicated issues that require a case-by-case analysis. Employers facing these issues are strongly encouraged to consult with legal counsel.
Employers can review the latest EEOC COVID-19 vaccination guidance, sections K and L in particular.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
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