How to call applesauce on COVID-19 religious objections and other new advice from the EEOC

I meant to write a blog post on Sunday evening to go up yesterday.

But, here’s the thing.

After Seattle, I flew to Las Vegas for the Eagles/Raiders game. And what I witnessed on the football field on Sunday afternoon, I spent some time in the evening at the Legacy Club at Circa enjoying the views of the strip (and 2 oz pours of Old Forester 1920 Style Prohibition Whisky).

(If you had been at that debacle of a game, you would have been right next to me afterward, enjoying high-quality bourbon in a futile attempt to erase what we’d seen earlier in the afternoon. Who the hell starts the second half with an onside kick? Before I slip into a total vortex of football spite, let’s talk employment law.)

As I was boarding one of my flights on Monday back to Philly, I received an email alert from the U.S. Equal Employment Opportunity Commission. The EEOC has provided additional information on religious objections to workplace vaccine requirements to its growing technical assistance manual.

Perhaps you’ve dealt with one or two yourself?

The EEOC touts the following critical updates:

• Employees and 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.
• Title VII requires employers to consider requests for religious accommodations but does not protect the social, political, or economic views or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
• Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

Now, if you’re thinking to yourself that none of this sounds all that groundbreaking, well, you’re not alone. So, let’s get further into the weeds and see what we can take away from the new guidance.

Is there specific language that employees must use to voice religious objections to vaccinations? Not really, but sort of. Employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. The EEOC notes that the same goes if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.

Can an employer call bulls**t on an employee’s assertion of a religious objection to a COVID-19 vaccination? If so, how? “Applesauce” sounded a bit more refined for the title of this post. Suppose an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief. In that case, the employer can conduct a limited inquiry and seek additional supporting information.  An employee who fails to cooperate with an employer’s reasonable request to verify a professed belief’s sincerity or religious nature risks losing any subsequent claim that the employer improperly denied an accommodation.

Just remember that the sincerity of an employee’s stated religious beliefs also is not usually in dispute.  The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Factors that – either alone or in combination – might undermine an employee’s credibility include:  whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

What about “nontraditional religious beliefs”? The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers.  While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief. They should not assume that the employer already knows or understands it.

By contrast, Title VII does not protect social, political, or economic views or personal preferences.  Thus, objections to COVID-19 vaccination based on social, political, or personal preferences, or nonreligious concerns about the vaccine’s possible effects do not qualify as “religious beliefs” under Title VII.

What can employers ask without crossing the line? The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, it’s not dispositive. An individual’s beliefs – or degree of adherence – may change over time. Therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer 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 standard practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation. But, plant your flag and defend the hill at your own risk. You may die on it.

How does an employer demonstrate undue hardship? Think workplace safety. Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Each situation stands on its own. An employer should rely on objective information — not speculative hardships — when faced with an employee’s religious objection. Specific common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  Another relevant consideration is the number of employees seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Do we risk opening the floodgates by granting accommodations? No.  The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. Suppose more than one reasonable accommodation would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII. In that case, the employer may choose which accommodation to offer.

(A word of caution from the blogger. Be careful about accommodations resulting in reductions in pay or benefits when other reasonable accommodations exist. The optics suggest punishment, not accommodation.)

Can an employer reconsider an accommodation (i.e., rescind it)? Yes. An employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.