On October 25, 2021, the EEOC released its latest update to its COVID-19-related technical assistance on a much-anticipated topic: religious exemption from COVID-19 vaccination. The EEOC has released guidance periodically since the onset of the COVID-19 pandemic, but this latest update is particularly well-timed given the increasing number of vaccine mandates in the public and private sectors.

The latest guidance clarifies that:

• Even though there are no “magic words” when an employee makes an accommodation request, an employee making a religious exemption request must inform their employer if they are requesting an exemption from a COVID-19 vaccination requirement because of their religious belief; and that the same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until a specific brand is available.
• Employers can ask employees to explain the religious nature of their belief, as well as how their religious belief conflicts with COVID-19 vaccination requirements.
• Employees should not assume that an employer already knows or understands the religious nature of their belief.
• Employers may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.
• While the sincerity of a religious belief is not normally in dispute, the employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.”

The EEOC also provides various scenarios in which an employee’s religious exemption request can be met with additional questions, or denied. They include:

• When an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief. In such a case, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.
• When an objection to COVID-19 vaccination is not based on religion. Objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on non-religious concerns about the possible effects of the vaccine, do not qualify as religious beliefs under Title VII.
• When an employee is not credible. The EEOC clarifies that while the sincerity of a religious belief is not normally disputed, employee credibility can be considered when the employee has acted in a manner inconsistent with the professed belief; when there is a particularly desirable benefit that is likely to be sought for non-religious reasons; when 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); or when the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
• When an employee fails to cooperate.

The EEOC also provides much-awaited guidance on the “undue hardship” analysis, and clarifies that when conducting an “undue hardship” analysis for religious accommodation, costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business — including the risk of the spread of COVID-19 to other employees or to the public. The EEOC also explains that while an employer cannot rely on speculative hardships, employers can consider the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer). Lastly, the EEOC makes clear that an employer has a right to 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.

What considerations does the EEOC remind employers of?

The EEOC reminds employers that while prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs or degree of adherence may change over time.

The EEOC also reminds employers that every request for an accommodation should be handled on a case-by-case basis.