United States: Granting Religious Accommodations For COVID-19: What Employers Need To Know

Religious Exemptions to Mandatory Vaccine Policy

Employees who refuse to take the COVID-19 vaccine for religious reasons are protected by Title VII. Therefore, religious accommodations for the COVID-19 vaccine should be treated like any other religion-based accommodation request. Employers should continue to provide employees with a clear and accessible process for requesting an accommodation and should continue to analyze requested accommodations on a case-by-case basis and offer accommodations when required pursuant to the law and its policies. Importantly, employees requesting such an accommodation need not use any specific phrase, or “magical words,” in order to trigger an employer's obligations. Employers should keep in mind that all sincerely held religious beliefs may give rise to an accommodation obligation, not only “mainstream” or commonly-known religions.

The standard for COVID-19 vaccine-related religious exemptions under Title VII is that any such accommodation request should be granted unless it imposes an “undue burden” on the employer's business. The U.S. Supreme Court standard for an undue burden or undue hardship under Title VII is “any burden that imposes more than a de minimis cost, either monetary or non-monetary, on the employer.”

When analyzing whether the exemption and accommodation are feasible, employers should generally accept the proffered religious belief as truthful. However, an employer may question the sincerity of a purported religious belief if it has an objective basis for questioning whether or not the employee sincerely holds the proffered religious belief. In questioning the sincerity of an employee's beliefs, the U.S. Equal Employment Opportunity Commission (“EEOC”) in its March 2022 update stated that an employer may make a limited factual inquiry and seek additional supporting information regarding such beliefs. Any such inquiries should be well documented to avoid any claims of failure to accommodate, discrimination, or harassment based on religion.

The EEOC non-binding guidance states that employers may consider the following factors in seeking additional information or denying a religious accommodation request:

• Whether the employee has acted in a manner inconsistent with the professed belief;
• Whether the accommodation sought is for nonreligious reasons;
• Whether the timing of the request is suspicious, such as immediately after a request for accommodation of the COVID-19 vaccine for secular reasons; and
• Whether the employer has reason to believe the accommodation is not sought for religious reasons.

Granting the Accommodation

Once an employer has determined that the religious exemption applies, they must consider whether there is an available accommodation for the employee who cannot receive the COVID-19 vaccine due to religious belief. As for other accommodations granted under Title VII, the employer should carefully consider all possible reasonable accommodations, especially either telework or reassignment. However, the employer should be careful to not offer any accommodation that results in a loss of pay, seniority, or other benefit of the position, as those are not considered a reasonable accommodation.

An employer need not grant a reasonable accommodation when it will impose an undue hardship on the employer's business. Whether an undue hardship will arise should be analyzed on a fact-specific analysis of actual and real hardships, and not ones that are merely speculative or predicted. Further, and especially in the times of COVID-19, employers can consider both monetary and non-monetary burdens. These may include the cost of setting an employee up for remote work if the employer is not already equipped for such remote work, or the burden of allowing an unvaccinated worker continue to work in-office and potentially expose other employees to COVID-19 and cause a decrease in productivity and damage to the health and safety of other employees.

Employers should also note that granting one employee a religious accommodation does not mean the employer must grant every employee's requested accommodation, nor must the employer continue to grant an accommodation indefinitely. The EEOC has particularly noted the concern regarding COVID-19's ability to rapidly change, which also leads to rapidly changing guidelines, safety measures, and best practices.

Should employers anticipate many employees requesting such accommodations, the knowledge of multiple employees working remotely or on some other accommodation may also weigh on an employer's analysis of whether or not the accommodations will cause an undue burden, and can play a role in either denying the exemption altogether, or denying certain accommodations.

As of this article, courts have not issued clear guidance on how Employers should handle their COVID-19 vaccine policies. In the lawsuits that have been filed regarding accommodations sought and rejected, Courts have rejected requests for immediate orders blocking the enforcement of vaccine policies.

With the landscape of COVID-19 still subject to changing regulations as COVID-19 and the law continue to evolve, the EEOC will continue to issue guidance to employers absent guidance from the courts. Employers should continue to follow standard practices regarding religious accommodations under Title VII. Since COVID-19 creates unique risks to employees and particular workplaces (including the practicability of social distancing available, feasibility of remote work, employee morale, etc.), employers should consider whether granting religious accommodations is appropriate using a fact intensive approach. Employers should also carefully evaluate the burden of religious accommodation on its business and other employees, and to continue to do so as the pandemic shifts phases and court decisions and regulations evolve.

Dykema will continue to monitor ongoing case law and EEOC recommended practices and guidelines as they evolve. Please contact the author of this article or a member of Dykema's Labor and Employment team with any questions about the foregoing.

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