EEOC Provides Guidance to Employers on COVID-19 Religious Accommodation Requests
On October 25, 2021 and October 28, 2021, the Equal Employment Opportunity Commission (EEOC) provided updated guidance to help employers with the influx of religious accommodations from job applicants and employees pertaining to COVID-19 vaccine mandates, masking requirements, and testing requirements. Of particular note is Section K.12 pertaining to Title VII and COVID-19 Vaccinations, which states that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.”
However, many individuals have arrived at their feelings toward vaccine requirements, masking requirements, and testing requirements on their own in response to the recent COVID-19 pandemic. Employers may feel that individuals are making “religious” accommodation requests as an excuse for avoiding unwanted obligations. How does an employer test whether an employee’s requested religious accommodation is based on a sincerely held religious belief?
Upon receipt of a religious accommodation request, the employer should do its due diligence to determine whether it has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In questioning the religious nature of the belief, employers may ask the employee for additional supporting information pertaining to the belief and why the belief conflicts with the employer’s COVID-19 policy. Title VII (and the state equivalent, the New Jersey Law Against Discrimination) does not protect social, political, personal, medical, or nonreligious concerns about the possible effects of the vaccine.
Moreover, the majority of recognized religions do not have tenets prohibiting vaccinations.1
While the sincerity of an employee’s stated religious beliefs is normally not in dispute, the employee’s sincerity in holding a religious belief is largely a matter of individual credibility. Factors that might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief; 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 a reason to believe the accommodation is not sought for religious reasons.
When an employee’s objection to a COVID-19 vaccination, masking, or testing requirement is not religious in nature or is not sincerely held, Title VII and the NJLAD do not require the employer to provide an exception to the requirement as a religious accommodation. Accordingly, employers should coordinate with their labor counsel to discuss policies and procedures to ensure that they do not run afoul of EEOC guidance or anti-discrimination laws.