By: Ty Hyderally, Esq., Francine Foner, Esq.

The EEOC publishes “technical assistance” questions and answers on its website to clarify COVID-19 issues arising under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Americans with Disabilities Act (ADA) and other EEO laws.[1]   On October 25 and 28, 2021, the EEOC updated its “technical assistance” guidance for navigating when a religious accommodation may be available under Title VII to an employee who objects to a COVID-19 vaccine mandate based upon religious beliefs.

On October 25, 2021, the EEOC updated five areas pertaining to an employee who seeks a religious accommodation to a COVID-19 vaccine requirement. First, the EEOC addressed that an employer may be justified in asking for supporting information for such a religious exemption, if the employer has an objective basis to question the religious nature or sincerity of the employee’s religious belief. However, the EEOC also notes that a belief should not be assumed to be 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 common practices but not others”.  Further, each request should be determined on an individual basis.  In addition, the EEOC cautions that “objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.”

Second, the EEOC discusses when accommodating an employee’s request for a religious accommodation would pose an undue hardship to an employer; in such a case, the employer would not be obligated to accommodate the request. The EEOC directs that “an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.” Id.  To demonstrate undue hardship, an employer needs to show how much cost or disruption will be caused by the proposed accommodation, based upon objective information and not merely speculation. Costs to be considered include direct monetary costs and the impact of the accommodation on the employer’s business operations, as well as the risk of spreading COVID -19 to other employees or to the public. Once again, each case must be considered on its particular facts.

The EEOC provides examples of issues to consider with regard to whether a religious accommodation poses an undue hardship during the COVID-19 pandemic, such as “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)” and “the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).”

Third, the EEOC clarifies that just because an employer grants a religious accommodation to one employee does not require the employer to grant every request for an accommodation from a COVID-19 vaccination requirement. Rather, each request must be considered based on the specific factual context, such as the employee’s position, job duties, location of work, and the number of employees who are fully vaccinated.

Fourth, the EEOC observes that an employer is not obligated to provide an employee with the particular reasonable accommodation that the employee prefers, but can offer an alternative accommodation if there is another reasonable accommodation that would resolve the conflict between vaccination and an employee’s sincerely held religious belief. However, the employer should be able to explain to the employee why the preferred accommodation is not being granted. The EEOC update also states that employers may rely upon CDC recommendations when determining whether an accommodation exists which will not impose an undue hardship on the employer.

Fifth, the EEOC reviews when an employer can reconsider and reverse a religious accommodation that is granted to an employee. The EEOC notes that an employer may discontinue an 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.” Similarly, an employee’s religious beliefs and practices may change over time, which may require the employer to provide a new or different religious accommodation to the employee. The EEOC recommends that before revoking a religious accommodation, the employer discuss with the employee any concerns it has about continuing a religious accommodation and engage with the employee to see whether there may be an acceptable alternative accommodation.

On October 28, 2021, the EEOC issued a sixth update, responding to the question of whether employees who have a religious objection to being vaccinated need to tell their employer and if so, whether they must use specific language. The EEOC explains that employees do need to tell their employer if they want an exemption to a COVID-19 vaccine mandate because of a “sincerely held religious belief, practice or observance.” Such a request for “religious accommodation” can be made without using any particular words or references to the law; an employee need only notify the employer that they have sincerely held religious beliefs that conflict with the vaccination requirement. This can also apply to an employee whose religious beliefs conflict with getting a particular vaccine and who wish to wait until an alternative version or a specific brand of COVID-19 vaccine is available.

It is clear that under Title VII, there is not a “one size fits all” solution to accommodating employees’ religious beliefs that conflict with COVID-19 vaccine mandates. Rather, such requests involve consideration of the particular facts and circumstances of each request.

In addition to Title VII, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42 provides protection to New Jersey employees whose religious beliefs do not allow them to comply with vaccine mandates, Thus, New Jersey employers who do not accommodate an employee’s religious-based objections to mandatory vaccination could risk a claim of religious discrimination in violation of the LAD. Brown v. Our Lady of Lourdes Med. Ctr., 2016 N.J. Super. Unpub. LEXIS 2177.

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[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=