Carissa Davis and John Melcon

By now, many employers have received requests for religious accommodations from COVID-19 policies—primarily vaccination policies. The Equal Employment Opportunity Commission’s (“EEOC”) guidance thus far, as reported through prior blogs, has remained largely consistent with pre-COVID-19 religious accommodation law. As we enter into the third year of the pandemic, the EEOC has again updated its principal guidance for employers: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

While many of the latest updates are unsurprising, such as the continuous clarification that Title VII protects religious beliefs, practices, and observances, some of the changes provide valuable insight into how the EEOC will view requests for accommodations under Title VII.

While “purely” political, social, or economic beliefs are not protected under Title VII, the guidance now acknowledges that religious and political views may “overlap,” and this overlap does not operate to place the beliefs outside the purview of Title VII’s religious protections.

When discussing possible reasonable accommodations, the EEOC added language indicating that employers should consider the location in which an employee can perform his or her work, a nod to the likelihood that remote work can often be a reasonable accommodation.

Perhaps the most significant revision to the guidance concerns unpaid leave as an accommodation. Specifically, the EEOC explains, “an employer’s proposed accommodation will not be ‘reasonable’ if the accommodation requires the employee to accept a reduction in pay or some other 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 that and would not impose undue hardship on the employer’s business.” While this revision does not radically change the state of accommodation law, it gets to the heart of an issue that has been and will continue to be hotly litigated.

Just a few months ago, we published a blog on a decision out of the United States District Court for the District of Colorado in which the court held that defending-employer United Airlines would likely prevail on the merits in showing that unpaid leave was a reasonable accommodation. More recently, however, a divided panel of the Fifth Circuit Court of Appeals ruled that forcing workers to choose between violating their religious convictions or accepting an indefinite period of unpaid leave can constitute “irreparable harm.” As COVID-19 religious accommodation law develops, employers are advised to heed the EEOC’s updated guidance and exercise caution before placing religious vaccine objectors on unpaid leave.

Since April 2020, the EEOC has received roughly 6,225 COVID-related allegations of discrimination, and more than 2,700 vaccine-related charges. These statistics and the EEOC’s updated guidance reinforce the lessons employers have come to know very well: When it comes to COVID-19, traditional employment law can provide only so much guidance; beyond that, we are living through the making of legal history.