In March, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws with a new section on how employers should handle employees who raise religious-based objections to vaccine mandates.

Though it may feel like COVID is on its way out with case numbers dropping nationwide, employers should pay attention to the new guidance; COVID-related charges of discrimination filed with the EEOC are on the rise (by the thousands), and many of these are tied to vaccine-related issues.

Takeaways from the new set of Q&As include the following:

• As a best practice, employers should provide employees and applicants with information about who to contact and the proper procedures for requesting a religious accommodation. The EEOC offered its own internal religious accommodation form to use as an example for employers in developing their own.
• As indicated in the EEOC’s form, employers can ask employees to explain how their religious beliefs conflict with the employer’s COVID vaccine mandate, including additional limited factual information as necessary.
• Employers need not provide an accommodation in the form of a religious-based exemption from a vaccine requirement if doing so would create an undue hardship on the company, such as where the religious accommodation would violate federal law, impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. But an employer cannot rely on speculative or hypothetical hardship in its assessment and must instead rely only on objective information.
• Just because an employer grants some employees a religious accommodation from COVID vaccine requirements does not mean it must grant all such requests from all employees. The determination of whether there is a conflict between the employer’s vaccine mandate and an employee’s sincerely held religious belief/practice/observance and whether a particular accommodation imposes an undue hardship on the employer’s business depends on the specific factual context of each situation and each employee.
• An employer may provide another possible accommodation other than the one specifically requested by the employee, but an accommodation will not be considered reasonable if it involves a reduction in pay or loss of benefits when there is a reasonable alternative accommodation available. Specifically, employers proposing unpaid leave as an accommodation should consider other alternatives.
• The employer’s obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. An employer has the right to discontinue a previously-granted accommodation if it is no longer utilized for religious purposes or if circumstances change and the provided accommodation now poses an undue hardship on the employer’s operations. As a best practice, however, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.

As with all things COVID, even when it seems the urgency to do so is waning, employers should continue to monitor this and other guidance and expect additional changes in the future. Employers would be wise to contact employment counsel as specific situations arise.

By Rebecca D. Bullard, rbullard@dsda.com