The EEOC has updated its technical guidance and answers related to COVID-19 and requests for religious accommodations.  The updated guidance adds six religious accommodation-based questions and answers.  The updated guidance mostly reinforces several preexisting concepts, including (i) how employers should analyze the religious nature and sincerity of an employee’s belief; (ii) what might constitute “undue hardship”; and (iii) the need for employers to analyze each accommodation request on a case-by-case basis.  You may review the revised guidance here: [https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L]

In this article we are going to briefly review the relevant portions of the updated guidance further below.

There Are No “Magic Words” To Request an Accommodation

The EEOC’s guidance provides that employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”).  Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

However, employees do not need to utilize any specific, “magic words” to request an accommodation – which is nothing new under applicable accommodation law.  However, the employee will need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

To clarify this point, the guidance identifies a scenario where an employee may note to the employer a religious conflict with “getting a particular vaccine” and the employee’s “wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.”  In that scenario, the EEOC advises that, as a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

Employers Should Analyze Certain Factors When Considering the Sincerity or Religious Nature of a Belief

The updated guidance, for the most part, tracks its prior guidance related to religious discrimination, and confirms that:

Generally, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, 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.
Religion includes “nontraditional religious beliefs,” but does not protect “social, political, or economic views or personal preferences,” or “nonreligious concerns about the possible effects of the vaccine.”
Sincerity is “largely a matter of individual credibility,” and in analyzing an employee’s credibility, employers may, per the EEOC, consider – either alone or in combination (although no one factor is determinative) – factors such as:

whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance).
whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Employers May Reject an Accommodation Request Where Certain Safety Concerns Exist.

Although the EEOC encourages employers to “thoroughly consider all possible reasonable accommodations, including telework and reassignment,” it recognizes that an employer need not provide an accommodation, despite the existence of a sincerely held religious belief, where an “undue hardship” exists as to an employer’s operations.  The EEOC confirmed the application of the Supreme Court’s “de minimis” standard – that is, undue hardship may exist where employers must bear more than a “de minimis” or minimal cost to accommodate the religious belief.  As it relates to the undue hardship analysis, the EEOC further noted that:

“Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public,” and referenced cases where such 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”.
Employers should make this undue hardship assessment “by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.”
Employers could find themselves in a situation where they grant accommodations to some, but not others, despite the similar sincerely held religious belief.  This distinction may exist primarily because the existence of undue hardship “depends on its specific factual context,” which may vary, depending on: “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.”

The Need For, and Use of, Religious-Based Accommodations May Change Over Time

The guidance reminds employers that the “obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.” As such, just as employees’ beliefs may change over time and result in a new accommodation request, so too may an employer reverse course to revoke a previously provided accommodation to an employee no longer utilizing the accommodation for religious purposes or where that accommodation “subsequently poses an undue hardship on the employer’s operations due to changed circumstances.” In this latter case, the EEOC encourages employers to discuss the potential accommodation revocation with the employee and explore any “alternative accommodations that would not impose an undue hardship.”