While conditions with the COVID-19 pandemic continue to improve, questions linger over vaccine mandates, testing requirements, caregiver rights, and other novel COVID-related topics.  Recently, the United States Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance concerning religious-based exemptions from mandatory vaccination policies.  The EEOC’s update provides key clarifications about best practices for handling employee requests for religious accommodations.  The particulars of the EEOC’s new guidance will be discussed in turn below.

Questioning an Employee’s Religious Beliefs.

The EEOC previously stated that the definition of “religion” is “broad” and may protect “beliefs, practices, and observances with which the employer may be unfamiliar.”  For that reason, the EEOC recommended an employer assume the sincerity of an employee’s stated religious belief, unless the employer is aware of facts that would allow it to objectively question the belief.

The EEOC’s new guidance clarifies that an employer may ask an employee for an explanation as to how their religious beliefs conflict with the employer’s COVID-19 vaccine policy.  Further, the guidance emphasizes that there may be an overlap between an employee’s stated religious belief (which is protected) and their political beliefs (which are not).  Specifically, the EEOC clarified that “overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching.”  This new guidance helps clarify that an employer may request more information from employees about claimed religious belief(s) without running afoul of Title VII.

Undue Hardships Cannot be Speculative or Hypothetical.

According to the EEOC’s previous guidance, an employer may require all employees physically entering a workplace to be vaccinated.  However, in certain circumstances, Title VII requires an employer to provide reasonable accommodations for employees who do not get vaccinated because of religious reasons.    Generally speaking, once an employer is on notice an employee is requesting a religious-based exemption to a vaccine mandate, the employer must provide a reasonable accomodation unless doing so would cause an “undue hardship” for the employer.

The EEOC’s updated guidance added an additional wrinkle for employers to consider when assessing requests for religious accommodations.  Specifically, the EEOC states employers must rely on “objective information” and not “speculative” or “hypothetical” hardships.  Accordingly, employers should base undue hardship decisions on legitimate factors where possible.

Unpaid Leave vs. Reasonable Alternatives. 

Generally speaking, an employer is not required to grant an employee’s preferred accomodation.  However, the EEOC’s new guidance cautions employers against proposing unpaid leave as an accommodation where feasible alternatives are available.  The EEOC reasons that defaulting to unpaid leave or accommodations that result in a pay reduction is not “reasonable” if alternative options are available that will not impose an undue hardship on the employer.  As such, an employer should base any decision to reject an accomodation, especially the employee’s preferred accomodation, that will not result in a reduction in pay on legitimate factors.  That way, an employer will have tangible evidence that no feasible alternatives were available besides options resulting in a reduction in pay, like unpaid leave or reassignment.

Continuing Obligation to Discuss Accommodations.

Under previous EEOC guidance, an employer is free to reassess the feasibility of religious accommodations based on changing circumstances over time.  For example, the employer may alter or rescind a previously granted accomodation based on a change in the employee’s religious beliefs or if the accomodation subsequently imposes an undue burden on the business. 

The EEOC’s new guidance states, “as a best practice, employers should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.”  This clarification underscores that an employer rescinding an accomodation based on changing circumstances would still be obligated to consider offering alternative accommodations that would not cause an undue hardship for its business.   

Going Forward.

The EEOC’s new guidance showcases that updates and clarifications may continue trickle in even as COVID‑19 conditions continue to improve.  Accordingly, employers should continue to monitor for new federal guidance, which may assist them in making determinations related to the pandemic and/or their internal policies.  Please contact the Masud Labor Law Group for the latest word on federal COVID-19 guidance or if you have any questions regarding vaccine mandates or employee exemption requests.