October 26, 2021

New EEOC Guidance Addresses Faith-Based Vaccine Exemptions

As COVID-19 vaccine mandates by employers become more common, so do requests for exemptions. Requests for religious exemptions from COVID-19 vaccine mandates have forced many employers to make difficult decisions regarding the validity of the accommodation requests as well as whether and how to reasonably accommodate legitimate requests — while also meeting the obligation to maintain a safe and healthy workplace. Yesterday, the EEOC issued new guidance providing helpful insight regarding an employer’s obligation to grant requests for religious exemptions to COVID-19 vaccine mandates.

Religious Accommodation Obligations Under Title VII

The right to request a religious exemption stems from Title VII of the Civil Rights Act of 1964 which (along with analogous state laws) protects workers from discrimination on the basis of various protected classes including religion. Under the law, employers must provide accommodations for workers who are unable to receive the vaccine based on sincerely held religious beliefs, unless doing so poses an undue hardship.

Sincerely Held Religious Belief 

A religious belief may be based on traditional, organized religions such as Christianity, Judaism, Islam, Hinduism and Buddhism.  It may also be new and uncommon.  It need not be derived from any formal church or sect doctrine.

The EEOC has consistently stated that the sincerity of an employee’s stated religious belief is usually not a matter for dispute, as it is “generally presumed or easily established.” The agency's general position is that employers and courts “are not and should not be in the business of deciding whether a person holds religious beliefs for the ‘proper’ reasons.” Notwithstanding, the EEOC recognizes that there are a number of factors, either alone or in combination, that might undermine an employee’s credibility when it comes to a sincerely held religious belief, including: (1) whether the employee has behaved in a manner markedly inconsistent with the professed belief; (2) whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; (3) whether the timing of the request renders it suspect (i.e. it follows an earlier request by the employee for the same benefit for secular reasons); and (4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. None of these factors is dispositive, and each is highly fact-intensive.

The new EEOC guidance states that while employers should presume that workers’ faith-based requests for vaccine exemptions are legitimate, federal anti-discrimination laws permit employers to deny exemption requests that are rooted in political or personal objections. While Title VII shields workers from bias based on religious beliefs, including “nontraditional religious beliefs,” the EEOC reiterated that the law “does not protect social, political, or economic views, or personal preferences … Thus, 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.” Under this framework, while employers should generally presume that a worker’s request for religious accommodation is based on a sincerely held religious belief, an employer that has an objective reason for doubting whether the belief is religious in nature or sincerely held may make a “limited factual inquiry” that seeks additional information to verify the legitimacy of the accommodation request.

The appropriate bounds of that “limited factual inquiry” will continue to be tested. For example, an employer recently made headlines for its response to accommodation requests based on purported use of fetal cell lines in COVID-19 vaccine development. As a condition of approval, the employer asked employees whether they would attest that they did not, and would not, use any other medication developed using fetal cell lines, citing various over-the-counter medications including Tylenol, aspirin, Motrin, ibuprofen, Pepto Bismol, Tums, Ex-Lax, Preparation H, and Benadryl. The employer's stated reason for the request was to ensure that staff requesting religious exemptions based on the use of fetal cell lines in COVID-19 vaccine development were sincere in their beliefs. Although the agency did not address specifically the legality of such a request, the new guidance states that “[a]n employer should not assume that an employee is 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,” which some employees will doubtless use as a basis for challenging such an attestation requirement.

Whatever form the “limited factual inquiry” takes, the EEOC guidance states: “[a]ny employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.”

Undue Hardship

Once a worker sufficiently establishes a sincerely held religious belief requiring exemption from the COVID-19 vaccine mandate, the burden shifts to the employer to demonstrate that accommodating the worker’s request would pose an undue hardship. Under the EEOC’s updated guidance, an employer must base accommodations on objective information and not mere speculation.

The guidance notes three main considerations an employer may weigh when assessing undue hardship:

  • The cost. The guidance reiterates the established standard that “more than a ‘de minimis,’ or a minimal, cost” is an undue hardship. “Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.” The EEOC notes that courts have previously found undue hardship where a religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
  • The workplace setting. The guidance notes several fact-specific considerations an employer may assess, including: (1) whether the employee works outdoors or indoors; (2) whether the employee works in a solitary or group work setting; (3) whether the employee has close contact with other employees or members of the public; (4) the nature of the employee’s duties; (5) the number of employees who are fully vaccinated; (6) the number of employees and nonemployees who physically enter the workplace; and (7) the number of employees who are seeking a similar accommodation (i.e. the cumulative cost or burden on the employer).  As to this last consideration, the guidance indicates that a concern that granting an accommodation to one employee may lead to other, similar requests does not establish undue hardship.  The employer may, however, “take into account the cumulative cost or burden of granting accommodations to other employees” which may justify denial of some or all subsequent “me too” requests. 
  • Alternative accommodations. The guidance reiterates that if there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship, the employer may choose which accommodation to offer, even if it is not the employee’s preference.

Finally, the EEOC notes that the “obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances,” and that an employer has the right to discontinue a previously granted accommodation if it is no longer required for a religious purpose or if the accommodation subsequently poses an undue hardship due to changed circumstances.


As employers continue to evaluate religious exemption requests to COVID-19 vaccine mandates, these steps can help establish compliance with Title VII and other anti-discrimination laws:

  • Ensure there is a well-communicated process in place for employees to make accommodation requests.
  • Take all requests for accommodation seriously, even if employees do not use “magic words” or precise language in communicating needs based on protected status.
  • Assess the circumstances of your workplace for accommodation options that would avoid undue hardship to business operations. Where possible, incorporate objective data, including current Centers for Disease Control and Prevention (CDC) guidance into this assessment.
Engage in an interactive process with an employee requesting an accommodation by asking questions to understand the basis for the request where there is an objective reason for requiring additional information, allowing the employee to be heard and discussing any options for potential alternative accommodations.

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