United States: COVID-19 vaccination: the long-awaited religious exemption guidelines from the EEOC
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On October 25, 2021, the EEOC released its latest update of its technical assistance related to COVID-19 on a highly anticipated topic: the religious exemption from COVID-19 vaccination. The EEOC has issued guidance periodically since the onset of the COVID-19 pandemic, but this latest update is particularly timely given the growing number of vaccine mandates in the public and private sectors.
The latest directives specify that:
- While there are no “magic words” when an employee requests accommodation, an employee requesting a religious exemption must notify their employer if they are requesting an exemption from a vaccination requirement. COVID-19 because of his religious belief; and that the same principles apply if employees have a religious conflict with obtaining 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 knows or already understands the religious nature of their belief.
- Employers can request an explanation of how the employee’s religious beliefs conflict with the employer’s COVID-19 vaccination requirement.
- While the sincerity of a religious belief is normally not contested, the employee’s sincerity in having a religious belief is “largely a matter of individual credibility.”
The EEOC also offers various scenarios in which an employee’s religious exemption request can be satisfied by additional questions or denied.. They understand:
- 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 investigation and seeking additional supporting information.
- When an objection to COVID-19 vaccination is not based on religion. Objections to the COVID-19 vaccination that are based on social, political, or personal preferences, or non-religious concerns about the possible effects of the vaccine, are not considered 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 contested, the employee’s credibility may be considered when the employee has acted in a manner inconsistent with the professed belief; when there is a particularly desirable advantage which is likely to be sought for non-religious reasons; when the timing of the request makes it suspicious (for example, it follows a previous request by the employee for the same benefit for secular reasons); or when the employer has reason to believe that the accommodation is not sought for religious reasons.
- When an employee does not cooperate.
The EEOC also provides much-awaited guidance on “undue hardship” analysis and clarifies that when performing an “undue hardship” analysis for religious accommodations, costs to consider include not only costs. direct monetary, but employer’s company – including the risk of spreading COVID-19 to other employees or the public. The EEOC also explains that even if an employer cannot rely on speculative hardship, employers can consider the number of employees seeking similar accommodation (i.e. the cumulative cost or burden for the job). ’employer). Finally, the EEOC clarifies that an employer has the right to terminate previously granted accommodation if it is no longer used for religious purposes, or if provided accommodation subsequently places undue hardship on the operations of the accommodation. employer due to changed circumstances.
What considerations does the EEOC remind employers of?
The EEOC reminds employers that while inconsistent past conduct is relevant to the question of sincerity, an individual’s beliefs or level of buy-in can change over time.
The EEOC also reminds employers that each accommodation request must be dealt with on a case-by-case basis.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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