religious accommodation Archives - Horton Management Law

On October 25, 2021, the U.S. Equal Employment Opportunity Commission updated its COVID-19 technical guidance to address employees’ religious objections to vaccine mandates. Title VII of the Civil Rights Act of 1964 protects workers from religious discrimination. The law also grants employees the right to seek accommodations of their sincerely held religious beliefs, practices, and observances. Given the proliferation of legally mandated and voluntarily imposed workplace vaccine mandates, many employees have sought exemption from the requirement on religious grounds. While acknowledging that employers generally must consider employee requests for religious accommodations, the EEOC emphasizes that employees are not automatically entitled to an exemption based on a religion-based objection.

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Employee Requests

The new EEOC guidance confirms that an employee must ask for a religious exemption to the vaccine mandate before the employer must consider offering one. Employees do not have to use any “magic words,” such as “religious accommodation” or “Title VII,” but must affirmatively express a conflict between their religious beliefs and being vaccinated for COVID-19.

Support for Religious Objections

The EEOC confirms its historical view that employers should generally assume an employee’s asserted religious belief is valid. But, with a sufficient “objective basis,” an employer may question the religious nature or sincerity of an asserted belief. In that case, the employer may engage in a limited factual inquiry and seek additional supporting information.

Religious Nature

Religious beliefs may be distinguished from purely personal, political, economic, or social views. However, Title VII protects even nontraditional religious beliefs. If there is uncertainty as to why the professed belief is religious in nature, the employee may be asked to explain.

Sincerity

Usually, it is difficult to challenge the sincerity of an employee’s professed religious belief. However, evidence undermining an employee’s credibility can be evaluated. For example, the EEOC notes the following potentially relevant factors:

prior acts by the employee inconsistent with the professed belief;
whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons;
timing of the request (e.g., following an earlier request by the employee for the same benefit for non-religious reasons); and
other information suggesting the accommodation is not sought for religious reasons.

The EEOC cautions that an individual’s sincerely held religious beliefs can change over time. And “[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.”

Undue Hardship

As with disability accommodations, employers need not grant religious accommodations that would pose an undue hardship. Nonetheless, employers are advised to “thoroughly consider all possible reasonable accommodations, including telework and reassignment.” What constitutes an undue hardship will vary between workplaces and potentially even between positions within the same organization.

The EEOC asserts that “[a]n employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information.” The following factors may be relevant in weighing an exception to a COVID-19 vaccination requirement:

nature of work location (indoors or outside)
type of work setting (solitary or group)
degree of interpersonal interaction
number of employees seeking a similar accommodation

Individualized Analysis

Employers should evaluate each religious accommodation request on its own merits. Thus, some employees with religious objections may be excused from the vaccine mandate while others are not.

In each case, an employer may consider:

type of workplace
nature of the employee’s duties
number of employees who are fully vaccinated
how many employees and nonemployees enter the workplace
the number of employees who would need a particular accommodation

An employee’s personal religious beliefs may affect what accommodations are possible for them compared to others.

Alternative Accommodations

Employers are not limited by the specific accommodation an employee seeks. They may consider any reasonable accommodation that would resolve the conflict between the vaccination requirement and the employee’s sincerely held belief without causing an undue hardship. If more than one accommodation meets that standard, then the employer should consider the employee’s preferred accommodation. But the employer retains the right to choose the accommodation granted even if different than the employee’s preference.

The EEOC suggests, “If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.”

Reconsidering Accommodations

The EEOC notes that the accommodation process is a “continuing obligation that takes into account changing circumstances.” Both employee religious beliefs and workplace conditions could change.

Of particular note, the technical guidance confirms that “an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.”

The EEOC suggests that, as a best practice, employers should discuss any changes (and potential alternatives) with the affected employee before revoking a previously granted accommodation.

Uncertainty Remains Unavoidable

This recent EEOC guidance offers some clarification for employers facing the difficult challenge of responding to employees’ religious objections to vaccine mandates. Unfortunately, however, the emphasis on a case-by-case analysis leaves each situation open to interpretation. As a result, employees who don’t get the accommodations they seek may pursue religious discrimination claims under Title VII or similar state or local laws. A wave of such litigation is likely, no matter how careful employers are in evaluating these requests. Thus, you should review these requests with an experienced employment lawyer before taking final action that may upset an employee.

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On August 9, 2019, Governor Cuomo approved a change to the New York State Human Rights Law enhancing worker religious discrimination protections. The law will now specifically address applicant and employee accommodations based on religious attire and facial hair. The amendment will take effect on October 8, 2019.

Religious Attire Protections

The amendment expands or at least clarifies the existing protections from religious discrimination under New York law.

The law already prohibits employers from requiring an applicant or employee to “violate or forego a sincerely held practice of his or her religion.” Before, this specifically included “the observance of any particular day or days or any portion thereof as a sabbath or other holy day.” Now the law adds a specific reference to “the wearing of any attire, clothing, or facial hair in accordance with the requirements of [the person’s] religion.”

“Undue Hardship” Exception

Employers will not always have to allow employees to wear religious attire or facial hair in every situation. There is an exception if, after engaging in a bona fide effort, the employer can “demonstrate that it is unable to reasonably accommodate the employee’s or prospective employees sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.”

Employers Must “Reasonably Accommodate” Religious Beliefs

New York State and federal law both require employers to make a reasonable religious accommodation for an employee’s sincerely held religious beliefs, unless doing so creates an “undue hardship” on the employer. Protected religious beliefs may include those of a traditional, organized religion. But also include beliefs not part of a formal religion or sect, even if practiced by relatively few people.

Employers should consider various factors in assessing whether a religious accommodation request imposes an undue burden or hardship. Here are some factors highlighted by the New York Attorney General:

the type of workplace;
the nature of the duties required for the position;
any cost associated with the implementation of the request relative to the size and budget of the employer;
the effect that the religious accommodation may have on the business;
any collective bargaining rights or seniority rights that may exist;
the number of individuals that may require the accommodation;
any impact on workplace safety and productivity;
whether the requested accommodation would conflict with another law that pertains to the circumstances; and
whether any alternative accommodations would also meet the needs of the religious needs of the applicant or employee.

It is often difficult for an employer to truly understand what religious beliefs would be considered “protected” under state and federal law and therefore must be accommodated. If you have an applicant or an employee that has requested a reasonable accommodation based on a protected religious belief, it is strongly recommended that you seek guidance from an employment attorney before making a decision that could potentially subject the company to liability.

Review and Prepare

New York employers should review existing dress code and grooming policies in light of the revised law. You should ensure that all personnel responsible for receiving and responding to applicant and employee accommodation requests in New York familiarize themselves with the new religious attire provision. They must also understand their obligations regarding religious accommodation requests generally.

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Tag: religious accommodation

Accommodating Religious Objections to COVID-19 Vaccine Mandates