COVID-19: EEOC Updates and Expands Employer Vaccine Guidance


All Employers


October 13 and 25, 2021


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(888) 378-2456

The U.S. Equal Employment Opportunity Commission (EEOC) updated Section K (Vaccinations – Overview, ADA, Title VII, and GINA) of its “What You Should Know” publication for COVID-19 guidance. It also added a new Section L for how employer vaccine rules are impacted by Title VII and religious objections.

Section K

Section K makes clear that EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination. Moreover, requesting documentation or other confirmation of vaccination is neither a disability-related inquiry under the ADA, nor does it reveal genetic information that would be subject to GINA (as long as the vaccine provider is not affiliated with the employer). However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.

If an employee seeks an exemption from a vaccination requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.

The EEOC distinguishes providing employee incentives for voluntary vaccination depending on who provides the vaccine. Specifically, outside the scope of a wellness plan, the ADA and GINA do not limit the amount of incentive that an employer may provide for employees to voluntarily receive the vaccine from a third-party provider who is not affiliated with the employer. However, where the employer or its agent is providing the vaccine, an employer’s incentive cannot be so substantial as to be “coercive.”

Section L

Section L adds a discussion about Title VII and religious objections to COVID-19 vaccine mandates. The information can be divided among five key areas.

Title VII Protection. The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers.  While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.  By contrast, Title VII does not protect social, political, or economic views, or personal preferences, which do not qualify as “religious beliefs” under Title VII.

Accommodation Requests. Employees need to inform their employer that their sincerely held religious beliefs conflict with the employer’s COVID-19 vaccination requirement in order to start the accommodation process; no specific wording is required.

Verification. An employer should generally assume that a request for religious accommodation is based on sincerely held religious beliefs. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Factors that might undermine an employee’s credibility include: acting inconsistent with the belief; seeking a particularly desirable benefit that is likely sought for nonreligious reasons; the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and there is reason to believe the accommodation is not sought for religious reasons. An 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.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis. If an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer may make a limited factual inquiry and seek additional supporting information. An employee risks a valid denial of their accommodation request if they fail to cooperate with the employer’s inquiry.

Accommodation. Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship. If the employer denies the employee’s proposed accommodation in favor of an alternative accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

Undue Hardship. Requiring an employer to bear more than a minimal cost to accommodate an employee’s religious belief is an undue hardship. (Note that the standard for undue hardship is different for individuals seeking accommodation based on disability or qualified medical reason.) Employers may consider direct monetary costs, as well as the burden on the conduct of the employer’s business, such as the risk of spreading COVID-19 to other employees or the public. When an employer is assessing whether granting a vaccine exemption would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation (i.e., the cumulative cost or burden on the employer). An employer has the right to discontinue a previously granted accommodation if it subsequently poses an undue hardship on the employer’s operations due to changed circumstances.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Action Items

  1. Update reasonable accommodation practices.
  2. Train appropriate personnel on accommodation procedures and protocols.
  3. Provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.
  4. Review accommodation denials with legal counsel.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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