Labor & Employment Law Alert

On October 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued new guidance concerning religious accommodations in response to the Occupational Safety and Health Administration’s pending Emergency Temporary Standard (ETS). The ETS will require private employers with at least 100 employees, to mandate their employees to be fully vaccinated or submit to weekly COVID-19 testing. As such, it is expected employers will face an influx of sincere and insincere religious accommodation requests from their employees to bypass the vaccine requirement. Here are the key takeaways from the EEOC’s guidance:


  • Employees must inform their employer that they are seeking an accommodation/exception to the COVID-19 vaccination requirement. They must specify their reason for doing so is because their sincerely held religious beliefs, practices, or observances conflicts with receiving the COVID-19 vaccine.
  • Employees do not need to specifically mention “reasonable accommodation” or “Title VII” when making their request.

Distinguishing between a sincerely held religious belief and personal/philosophical beliefs

  • The EEOC provides that under Title VII, an employer “should assume that a request for religious accommodation is based on sincerely held religious beliefs.” However, an employer has the right to make a “limited factual inquiry” and seek additional information if they have an objective basis for questioning the sincerity of the employee’s belief. If an employee refuses to provide additional information, they potentially lose a subsequent failure to accommodate claim.
  • It is important to note that Title VII does not protect social, political, or economic views or personal preferences. However, it does protect “nontraditional religious beliefs that may be unfamiliar to employers.” Thus an employer should not readily assume an employee’s belief is insincere because they have not heard about it.
  • The EEOC lists several factors employers should consider when assessing the sincerity of a religious accommodation request: “whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether 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 whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”

Determining Undue Hardship

  • Under Title VII, employers are not obligated to grant a reasonable accommodation request if the accommodation will cause an undue hardship on the employer’s operations. However, the EEOC provides, “employer[s] should thoroughly consider all possible reasonable accommodations, including telework and reassignment [as]… [i]n many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs without imposing an undue hardship.” Keep in mind, assessing the existence of an undue hardship is an individualized, fact-based assessment.
  • The EEOC advises considering these pandemic-related factors when determining if an undue hardship exists: “whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals)., and the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).”

Choosing a reasonable accommodation

  • An employer does not need to select an employee’s preferred reasonable accommodation if there are multiple effective accommodations the employer can choose from.

Modifying/Discontinuing religious accommodations.

  • The EEOC provides as employees’ religious beliefs change over time, the need for different or additional religious accommodation may arise. However, 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.”  

Additional information and guidance on testing strategies and recommendations can be found on the EEOC website.

A special thank you to law clerk Naomi Gulama for her assistance in preparing this article.


Practice Areas

Jump to Page