EEOC (Again) Updates Religious Accommodation and Vaccine Mandate Guidance

The EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws.  We previously discussed this guidance here. This guidance, updated on March 1, 2022, provides additional detail to Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).  We discuss the key details below.

Employers May Ask Employees to Explain How Their Religious Beliefs Conflict With COVID-19 Vaccination Requirements.

The guidance discusses the non-exhaustive factors to be considered when evaluating the sincerity or religious nature of a belief.  Expanding on its previous guidance, the EEOC makes clear that employers “may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement,” and refers readers back to its Section 12 of its Compliance Manual on Religious Discrimination.

Many employers have had to grapple with whether an employee’s belief is indeed “religious” (and thus protected) or merely “political” (and thus unprotected).  Importantly, the updated guidance states that there may be some overlap between the two: “overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.” 

Employers must continue to make these determinations on a case-by-case basis and assess individual credibility when deciding whether to grant a reasonable accommodation.

Undue Hardship May Not Be Speculative or Hypothetical.

The updated guidance also speaks to how employers should assess “undue hardship” on the business, adding in an important detail: in addition to warning against relying on “speculative” hardship, employers also cannot rely on “hypothetical” hardship when faced with an employee’s religious objection but, rather, should rely on objective information.” Accordingly, employers should carefully analyze the undue hardship on the business using objective, factually-specific factors, and should not rely upon remote, speculative or hypothetical possibilities to satisfy the “undue hardship” standard.

A Reduction in Pay or Loss of Benefits is Not a Reasonable Accommodation if There Are Alternative Accommodations.

While employers are not required to provide the employee’s preferred accommodation, the guidance notes that an employer’s accommodation will not be “reasonable” if it requires that the employee “accept a reduction in pay or some loss of a benefit or privilege of employment (for example if unpaid leave is the employer’s proposed accommodation) and there is a reasonable alternative accommodation that does not require and would not impose undue hardship on the employer’s business.” This is a key clarification from the previous guidance, and employers proposing unpaid leave as an accommodation should first consider alternative accommodations.

As a Best Practice, Employers Should Discuss Revocation of a Religious Accommodation with the Employee before Taking Action.

The guidance notes that the obligation to provide religious accommodations is a continuing obligation, but also one that allows for change depending on evolving circumstances.  The employee’s sincerely held beliefs may change, and the employer has the right to discontinue a previously granted accommodation if it is no longer for a religious purpose or it subsequently imposes an undue hardship on the employer.  The guidance further clarifies that, “as a best practice, employers should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.” Thus, employers should consider engaging in a dialogue with employees prior to revoking any reasonable accommodations.  Such conversations may provide an opportunity to discuss alternative accommodations or how to account for changes in circumstance.

Parting Thoughts

Even with COVID-19 cases waning, and the national conversation around vaccine mandates moving (for now) to the background, the EEOC continues to update its guidance related to religious accommodations.  Employers should continue to monitor these updates and assess how they might change company policy or practice.  Mintz stands ready to assist businesses in preparing and updating their vaccination-related policies and to ensure federal, state, and local compliance.

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