John Melcon

On October 25, 2021, the EEOC updated—again—its COVID-related “What You Should Know” technical assistance webpage. (See post regarding previous revisions.) This time, the EEOC added a handful of Q&As regarding religious objections to employer COVID vaccine mandates under Title VII. The EEOC clarified an issue many employers have been grappling with during the pandemic: An employer need not accommodate an employee’s vaccine objection when the objection is not based on a religious belief.

“When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held,” says the updated guidance, “Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.” Borrowing from the EEOC’s Compliance Manual chapter on religious discrimination, the guidance clarifies 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.”

Although the guidance cautions employers about questioning an employee’s religious objection, employers “may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.” Likewise, employers may evaluate the “sincerity” of an employee’s religious objection on an individual basis. Even so, employers “should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.” (See related post.)

Employees need not use any “magic words” to make their religious objections known, so long as they make it clear a conflict exists between their sincerely held religious beliefs and the employer’s vaccine mandate. As a best practice, says the EEOC, employers should provide information to employees about the procedures to use when requesting a religious accommodation.

The updated guidance reiterates that employers need not grant a religious accommodation if doing so would impose an “undue hardship,” but notes that “in many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.” When evaluating hardship, employers may consider the risk of COVID-19 spreading to other employees, as well as the cumulative cost or burden of the actual number of employees requesting religious exemptions. Moreover, “employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.”

The added guidance comes as OSHA’s much-anticipated emergency temporary standard is under final review at the White House.

At bottom, the message of the EEOC’s updated guidance is that employers should evaluate religious objections to vaccine mandates on an individualized, interactive, ongoing basis. Employers are well-advised to seek the assistance of counsel in crafting their plans for—and responses to—such objections.