Spiritual Lodging and Vaccine Mandate Guidance Updates

The EEOC has up-to-date its complex advice and responses in a document entitled What You Must Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.  The updated steering adds six spiritual accommodation-based mostly queries and solutions in a new Section L (Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).  The up-to-date guidance does not always split new floor in this place instead, it largely reinforces many preexisting ideas, together with (i) how companies need to examine the religious character and sincerity of an employee’s belief (ii) what may well constitute “undue hardship” and (iii) the need to have for businesses to analyze each individual accommodation ask for on a situation-by-situation basis.  We crack down the current assistance additional down below. 

Workers need to have not use “magic words” to ask for an accommodation. 

This is nothing new less than applicable lodging regulation, such as as to spiritual and incapacity-based lodging.  As element of this, the assistance flags a situation the place an employee may possibly take note to the employer a religious conflict with “getting a individual vaccine” and the employee’s “wish to wait around right until an alternative version or particular brand name of COVID-19 vaccine is obtainable.”  In this case, the employer really should deal with that as a request for an accommodation and commence appropriately.  This guidance reaffirms that employers really should take into consideration affirmatively building an accommodation course of action by which staff members are notified of the existence of the employer’s lodging coverage and how to use the exemption request system, which includes to whom personnel really should immediate requests, by when, and what information to incorporate.  Designing an accommodation system for spiritual (and disability) vaccine exemption requests and communicating this approach to personnel will help stave off probable claims that an employer did not sufficiently method an employee’s exemption request. 

Businesses really should examine specified factors when contemplating the sincerity or religious mother nature of a perception. 

The current steerage, for the most part, tracks the steerage the EEOC established forth in Section 12 of its Compliance Guide on Religious Discrimination, which it last up to date in January 2021.  Far more particularly, the EEOC confirms that:

• Companies need to commonly “assume” that a ask for is primarily based on a sincerely held religious belief, unless it has an “objective basis” to dilemma the “religious character or the sincerity of a distinct perception,” whereby the employer may perhaps make a “limited factual inquiry and [seek] additional supporting information.” 

• Religion consists of “nontraditional spiritual beliefs,” but does not defend “social, political, or financial sights or individual tastes,” or “nonreligious issues about the attainable outcomes of the vaccine.” 

• Sincerity is “largely a issue of individual trustworthiness,” and in analyzing an employee’s believability, employers may possibly, per the EEOC, consider – possibly by yourself or in mix (despite the fact that no one issue is determinative) – things these kinds of as:

  • whether or not the worker has acted in a manner inconsistent with the professed belief (though personnel have to have not be scrupulous in their observance).  However, in analyzing this aspect, companies should really: (i) notice that an employee may sincerely hold a spiritual belief even if they have changed their beliefs or diploma of adherence to their beliefs about time and (ii) not assume a belief is insincere “simply for the reason that some of the employee’s methods deviate from the frequently adopted tenets of the employee’s faith, or due to the fact the personnel adheres to some typical methods but not others.”

  • irrespective of whether the lodging sought is a specially appealing gain that is very likely to be sought for nonreligious causes

  • no matter whether the timing of the ask for renders it suspect (e.g., it follows an earlier ask for by the personnel for the same gain for secular good reasons) and

  • irrespective of whether the employer normally has explanation to feel the accommodation is not sought for religious good reasons.

Companies may well take into consideration rejecting an accommodation request wherever certain security fears exist.

Despite the fact that the EEOC encourages companies to “thoroughly consider all possible acceptable accommodations, together with telework and reassignment,” it recognizes that an employer need not give an accommodation, even with the existence of a sincerely held religious perception, the place an “undue hardship” exists as to its operations.  Below the EEOC confirmed the application of the Supreme Court’s “de minimis” standard – that is, undue hardship could exist the place employers must bear a lot more than a “de minimis” or minimum expense to accommodate the religious belief.  The EEOC even more noted that:

• “Costs to be considered [as part of the undue hardship analysis] incorporate not only direct financial fees but also the load on the perform of the employer’s organization – together with, in this instance, the chance of the distribute of COVID-19 to other personnel or to the general public,” and referenced circumstances the place these kinds of accommodation “would impair office safety, diminish effectiveness in other work, or cause coworkers to carry the accommodated employee’s share of perhaps harmful or burdensome get the job done” (emphasis included).  It all over again directed viewers back again to its Compliance Guide on this difficulty.

• Employers should make this undue hardship evaluation “by taking into consideration the specific points of just about every problem and will require to reveal how substantially price tag or disruption the employee’s proposed accommodation would require.” The EEOC also famous that in the safety context, employers could find themselves in a circumstance where by they grant accommodations to some, but not others, inspite of related sincerely held spiritual beliefs. Relevant pandemic-associated security components to consider include:

  • the type of workplace and the character of the employee’s obligations, which includes no matter whether the personnel requesting a religious lodging to a COVID-19 vaccination requirement works outside or indoors, functions in a solitary or team perform location, or has close make contact with with other personnel or members of the public (especially medically vulnerable people) 

  • the selection of staff members who are looking for a related lodging (i.e., the cumulative cost or stress on the employer)

  • the range of employees who are entirely vaccinated in the office and

  • how many workforce and nonemployees physically enter the office.

• But the EEOC also noted that a “mere assumption that many additional personnel could find a spiritual lodging to the vaccination necessity in the future is not evidence of undue hardship, [though] the employer could consider into account the cumulative cost or burden of granting lodging to other workforce.”

The require for, and use of, spiritual-based lodging may perhaps improve over time. 

Just as employees’ beliefs could adjust above time and final result in a new accommodation request, so also may possibly an employer reverse training course to revoke a beforehand-furnished accommodation to an employee no for a longer time making use of the accommodation for spiritual purposes or wherever that accommodation “subsequently poses an undue hardship on the employer’s operations thanks to changed conditions.”  In this latter scenario, the EEOC encourages businesses to explore the possible lodging revocation with the worker and take a look at any “alternative accommodations that would not impose an undue hardship.”

Parting Thoughts

Thoroughly knowledge the considerations related to COVID-19 vaccine-similar accommodations is far more essential than ever.  Employers are well-encouraged to contact their counsel when creating and applying their vaccine-connected lodging policies and when analyzing precise personnel accommodation requests.