EEOC Releases Updated Guidance Regarding Religious Exemptions From Mandatory Vaccination | Straddling Yocca Carlson and Rauth

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Monday, October 25e, the EEOC has updated its COVID-19 Technical assistance document include advice on how employers should approach requests for religious exemptions. Technical assistance does not differ much from earlier EEOC guidelines which deal with religious exemptions in general, see Article 12: Religious discrimination; EEOC Guidelines on discrimination based on religion, however, it provides a useful application of these principles in the context of COVID-19 vaccination. Below is a summary of the updated guidelines.

Employees must notify their employer if they request a religious exemption

When an employer has a mandatory vaccination requirement, it is up to the employee to inform the employer that they may be eligible for a religious exemption. The employer is not required to contact each employee to determine whether or not they will request an exemption. The employee is not required to use “magic words”, however, “he must inform the employer that there is a conflict between his sincere religious beliefs and the COVID-19 vaccination requirement of the employer”. The guidelines further state that, as a best practice, employers should instruct their employees on who to contact and what procedures to use when requesting a religious exemption.

Additionally, the guidelines provide that employees may have an objection to a particular vaccine and wish to wait until an alternative version or a specific brand is available. This is important because some religious exemptions are based on the use of fetal cell tissue in the development of certain vaccines. Regardless of the medical efficacy of these objections, this objection may be limited to a certain vaccine rather than to vaccines in general.

Employers are not always obligated to accept religious accommodation requests at face value

As a general rule, employers should assume that an employee’s request for religious accommodation is based on genuine religious belief. However, if an employer has an “objective basis” to question the religious nature or sincerity of religious belief, the employer may conduct a “limited” factual investigation into the claim. In all likelihood, the employee will be able to provide additional details regarding his request, however, if he does not cooperate with the employer’s reasonable request for additional information, his ability to assert that the employer does not. did not respond to his request is considerably hampered.

Under Federal Anti-Discrimination Law, Title VII, the definition of religion is broad and not limited to traditionally recognized religions, however, the definition of religion does not extend to social, political, economic or to personal preferences. It is therefore not necessary to take into account any objections to the vaccine regarding possible side effects or political preferences. Concretely, this broad definition means that it is difficult to contest a request for religious exemption on the grounds that it is not “religious”.

Additionally, it can be difficult to challenge the sincerity of an employee’s beliefs. The guide lists several factors that employers may consider: (1) whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in respecting them); (2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons; (3) whether the timing of the request makes it suspicious (for example, it follows a previous request by the employee for the same benefit for secular reasons); and (4) if the employer otherwise has reason to believe that the accommodation is not sought for religious reasons. While this framework can be useful, there is little guidance on how to apply it and which factors should be considered more strongly than others. The updated EEOC guidelines simply state that “no factor or consideration is determinative, and employers must assess religious objections on an individual basis.” Therefore, we recommend that you contact your legal advisor if you need to weigh these factors.

The guidelines further state that employers should not place too much emphasis on past inconsistent behavior, as an employee’s beliefs can change over time. However, while this generally means that an employee’s past activity contrary to their beliefs should not cause an employer to refuse the accommodation, it can also mean that an accommodation can be revoked if an employee later acts in response. violation of his beliefs. For example, if the employee requests and obtains a religious exemption on the grounds that the vaccine used fetal cell tissue but later obtains an abortion, employers may be able to question the sincerity of the earlier request. of the employee.

Accommodations that present “undue hardship” do not need to be granted

Once the employer determines that employees have a valid exemption request, they must provide reasonable accommodation that does not pose “undue hardship.” Employers should consider all possible accommodations, including telecommuting, reassignment, and increased testing to name a few (additional accommodation options can be found HERE). However, the Supreme Court has ruled that requiring an employer to bear more than a “de minimis” or minimal cost to accommodate an employee’s religious belief is undue hardship. 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 case, the risk of spreading COVID-19 to other employees or to the public.

While this may seem like a fairly low bar, employers should be tired of easily turning down accommodations due to undue hardship. EEOC guidelines state that this decision should be made on a case-by-case basis. Some common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting religious accommodation to a COVID-19 vaccination requirement is working outdoors or indoors, working under a working alone or in groups, or has close contact with other employees or members of the public (especially medically vulnerable people). Another relevant consideration is the number of employees seeking a similar accommodation (i.e. cumulative cost or burden to the employer). While these tips provide some direction, we suggest that you contact your legal advisor when faced with this issue.

Accepting a request does not mean that the employer must accept all requests for religious accommodation

The EEOC guidelines make it clear that requests for religious accommodation should be made on a case-by-case basis. When an employer assesses whether exempting an employee from being vaccinated would adversely affect workplace safety, they may consider, for example, the type of workplace, the nature of the employee’s duties, the number of The number of employees who are fully vaccinated, the number of employees and non-employees physically entering the workplace, and the number of employees who will actually need special accommodation. For example, an accommodation may be possible for an employee who works outdoors, but not for an employee who must work alongside someone with heart or respiratory problems.

Employers are not obligated to provide employees with preferred accommodation

If more than one accommodation is effective in eliminating religious conflict, the employer must consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee. For example, if the employee has requested to work from home, but it would be more efficient for them to work from the office and wear a mask subject to testing, the employer may offer the latter option. If the employer refuses the accommodation offered by the employee, the employer must explain to the employee why the preferred accommodation is not granted.

Employers Can Reconsider Religious Accommodation

The guidelines make it clear that employers can reassess requests for religious accommodations based on changing circumstances. For example, if the employee begins to act in a way that calls into question the sincerity of their beliefs or if the current accommodation no longer works. However, before denying the request or changing the accommodation, the employer should request additional information from the employee and work with them to see if another accommodation is available.

Annual update

Jeff Dinkin and Jared Speier will discuss this advice, mandatory vaccination and other developments in employment law during their annual update on November 18, 2021 at 8 a.m. This is the webinar you can’t miss. Register here.

Stradling has resources to help you stay compliant

To help California employers comply with the various COVID-19 requirements in California, Stradling has created COVID-19 protocols that incorporate all of the new ETS requirements and clarifications and help businesses comply with federal, state and federal requirements. regional. We encourage you to contact us if you are in the process of reopening or have been doing business and want to ensure that you are in compliance with applicable industry guidelines.

Please do not hesitate to contact us for assistance in dealing with the effects of the COVID-19 pandemic on your business.


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