The E.E.O.C.’s New Guidelines for Handling Exemption Requests

The federal Equal Employment Opportunity Commission (EEOC) has again expanded its pandemic guidelines, this time to address the potential conflict between mandatory workplace COVID vaccination policies and employee religious belief and practice.

The EEOC oversees enforcement of Title VII of the Civil Rights Act of 1964, in part protecting workers from religious discrimination. On the October 28 issue of these revised standards, EEOC Chair Charlotte A. Burrows observed “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.”

Among other details, the guidelines direct:

• Notice Required: Employees and job 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;
• Social, Political or Other Views or Preferences Not Covered: Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement;
• Broad Definition of Religion: Title VII’s definition of “religion” protects nontraditional religious beliefs.  The employer should not assume that a request is invalid simply because it is based on unfamiliar religious views or practices;
• Employer Ability to Confirm Request Validity: While an employer should assume that an accommodation request is based on sincerely held religious beliefs, if management has an objective basis for inquiring further, they can make a “limited factual inquiry” and seek “additional supporting information” to confirm the religious nature or sincerity of the request;
• Employee Obligation to Cooperate with Confirming Process: An employee should not assume that management already knows or understands the religious nature of his/her belief.  A worker who fails to cooperate with an employer’s reasonable request for verification risks losing any subsequent claim
  that the employer improperly denied an accommodation;
• Determining Sincerity of Request: Gauging sincerity comes down to “individual credibility.” Pertinent factors include whether the employee has acted in a manner inconsistent with the professed belief, “although employees need not be scrupulous in their observance”; and
• Reasonable Accommodation vs. Company Undue Hardship: Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation. The line between employer ability and obligation to provide a reasonable accommodation and undue hardship absolving management from accommodation comes down to careful examination of all relevant factors in each case.  For example, is it possible to arrange (or continue) telework for the employee without imposing unreasonable burden on the company’s finances or operations?

Take-aways: It is essential for management to establish a protocol for such exemption requests and to address each one empathetically, systematically, and with thorough documentation of the process.  Consultation and guidance with knowledgeable legal counsel is more than just a good idea.  Terminating an employee seeking such accommodation on undue hardship grounds must be the last resort.
See also:

• Worker COVID Vaccinations – E.E.O.C. ‘s Expanded Guidelines for Pandemic Management (December 17, 2020)
• COVID’s Constant? … Change; EEOC’s Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable – Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related issues, including the fielding of such exemption requests. For more information, contact Tim Bowles, Cindy Bamforth orHelena Kobrin.

Tim Bowles
November 5, 2021