EEOC Expands Steering on Religious Exemptions to Vaccine Mandates Less than Title VII

Oct 26, 2021

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On October 25, 2021, the Equal Work Chance Commission (“EEOC”) expanded its steerage on spiritual exemptions to employer vaccine mandates less than Title VII of the Civil Legal rights Act of 1964 (“Guidance”).  This Direction describes in larger depth the framework less than which the EEOC advises companies to resolve religious accommodation requests.

The EEOC emphasizes that irrespective of whether an staff is entitled to a religious lodging is an individualized perseverance to be made in light of the “particular information of each and every scenario.”  Guidance at L.3.  The company also was careful to be aware that the Assistance is precise to employers’ obligations under Title VII and does not handle legal rights and responsibilities less than the Spiritual Liberty Restoration Act or state guidelines that impose a larger common for “undue hardship” than Title VII.

The EEOC offered its views on the subsequent thoughts.

Who will make a spiritual lodging request, and what type should it consider?

  • Only sincerely held religious beliefs, practices, or observances qualify for accommodation.  Id. at L.1.
  • A spiritual lodging ask for have to have not use “magic words,” but it will have to communicate to the employer that there is a conflict involving the employee’s spiritual beliefs and a place of work COVID-19 vaccination prerequisite.  Id.
  • The EEOC encourages companies to develop processes and/or designate particular personnel to manage this kind of spiritual lodging requests.  Id.  Businesses also should really supply workers and candidates with data about whom to speak to, and the treatments to follow, to request a spiritual accommodation, the EEOC advises.

May an employer ask an staff for extra information and facts regarding a spiritual accommodation ask for?

Indeed.  An employer may possibly ask for an rationalization of how an employee’s spiritual beliefs conflict with a COVID-19 vaccination necessity.  Id. at L.2.  Furthermore, an employer may well make a “limited factual inquiry” if there is an aim foundation for questioning either:  (1) the spiritual mother nature of the employee’s perception or (2) the sincerity of an employee’s mentioned beliefs.  Id.

  • The religious character of the employee’s belief.  Employers are not prohibited from inquiring no matter whether a perception is spiritual in nature, or based mostly on unprotected “social, political, or economic sights, or private preferences.”  Id.  Nonetheless, the EEOC cautions employers that even unfamiliar or nontraditional beliefs are protected below Title VII.  Id.
  • The sincerity of an employee’s stated beliefs.  The EEOC describes that “[t]he sincerity of an employee’s stated spiritual beliefs … is not commonly in dispute,” but gives things that may perhaps “undermine an employee’s trustworthiness.”  Id.  These variables are:
    1. steps the employee has taken that are inconsistent with the employee’s professed belief
    2. regardless of whether the accommodation may possibly have a non-spiritual gain that is “particularly desirable”
    3. the timing of the ask for and
    4. any other causes to imagine the accommodation is not sought for spiritual motives.  Id.  

No one variable is determinative.  Id.  The EEOC cautions that religious beliefs “may modify over time,” “employees require not be scrupulous in their [religious] observance,” and “newly adopted or inconsistently noticed tactics may even so be sincerely held.”  Id.

What is an undue hardship beneath Title VII? 

The Supreme Court docket has held that an employer is not needed to give an lodging if the accommodation would impose far more than a de minimis value.  Id. at L.3.  The Direction requires an expansive view of what sorts of expenses might justify denying an accommodation.  The EEOC indicates that this sort of prices may incorporate:

  • “[D]irect monetary costs”
  • “[T]he burden on the carry out of the employer’s business—including, in this instance, the threat of unfold of COVID-19 to the public”
  • Diminished efficiency in other work opportunities
  • Impairments to place of work protection and
  • Triggering coworkers to consider on the accommodated employee’s “share of potentially harmful or burdensome work.”  Id.

On top of that, an employer “may just take into account the cumulative price tag or load of granting lodging to other workforce,” but may well not rely on the “mere assumption” that “more employees may well request religious accommodation” with regard to a vaccine requirement.  Id. at L.4.  Similarly, an employer can not count on “speculative hardships” to deny an accommodation, in accordance to the EEOC, but have to count “on goal information and facts,” thinking of elements these as whether the worker creating the request works indoors or outdoors, in a solitary or group setting, or has close make contact with with other individuals, specifically “medically vulnerable people today.”

If an employer grants a single spiritual lodging ask for from a COVID-19 vaccination necessity, must it grant all spiritual accommodation requests?

No.  Religious lodging determinations are individualized in character and must aim on a certain employee’s request and no matter whether accommodating the precise staff would impose an undue hardship.  Id.  When assessing no matter if granting an exemption would impair place of work basic safety, the EEOC advises thinking of, amid other components, the amount of workforce who are completely vaccinated, bodily enter the place of work, and will want a distinct accommodation.

Should an employer supply a requesting employee’s preferred spiritual accommodation?

No.  An employer may perhaps choose any fair accommodation that would “resolve the conflict” involving the a vaccination requirement and an employee’s sincerely held religious belief, even though it “should consider the employee’s desire.”  Id. at L.5.  If an employer does not decide on an employee’s preferred accommodation, it need to make clear to the personnel why that accommodation is not granted.  Id.

Can an employer discontinue a formerly granted spiritual lodging?

Certainly.  An employer could be capable to discontinue an accommodation if the lodging is no lengthier employed for religious functions or the lodging subsequently imposes a lot more than a de minimis price tag.  Id. at L.6.  Companies also should be informed that an employee’s “religious beliefs and methods may evolve or change above time and could consequence in requests for added or diverse religious accommodations.”

Queries the EEOC did not deal with consist of what methods huge employers confronted with tens of thousands of fair lodging requests will have to acquire to satisfy the individualized-determination requirement what could constitute acceptable lodging for staff entitled to exemptions, especially when group transmission is superior and how businesses can comply with recordkeeping and privacy considerations beneath point out and federal statutes, like how to acquire and store worker vaccine and testing information.

The following Gibson Dunn lawyers assisted in making ready this shopper update: Eugene Scalia, Katherine V.A. Smith, Jason C. Schwartz, Jessica Brown, Andrew G. I. Kilberg, Zoë Klein, Chad C. Squitieri, Hannah Regan-Smith, and Kate Googins.

Gibson Dunn’s legal professionals are accessible to help in addressing any queries you may possibly have relating to these developments. To study far more about these difficulties, be sure to make contact with the Gibson Dunn lawyer with whom you typically work, or any of the subsequent in the firm’s Administrative Law and Regulatory or Labor and Employment practice groups.

Administrative Regulation and Regulatory Group:
Eugene Scalia – Washington, D.C. (+1 202-955-8543, [email protected])
Helgi C. Walker – Washington, D.C. (+1 202-887-3599, [email protected])

Labor and Work Team:
Jason C. Schwartz – Washington, D.C. (+1 202-955-8242, [email protected])
Katherine V.A. Smith – Los Angeles (+1 213-229-7107, [email protected])

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