EEOC Publishes New Guidance on Religious Accommodation Requests

CATEGORY: Special Bulletins
CLIENT TYPE: Public Education, Public Employers, Public Safety
PUBLICATION: LCW Special Bulletin
DATE: Oct 29, 2021

On October 25, 2021, the Equal Employment Opportunity Commission (EEOC) added a new section on religious accommodations to its guidance concerning COVID-19 and equal employment opportunity (EEO) laws, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.”[1]

The new section applies general EEOC guidance concerning religious accommodation[2] specifically to the context of COVID-19 vaccination requirements, clarifying the process for an employee to make a request for religious accommodation, employer evaluations of such requests, and the circumstances under which an employer may seek additional information from the employee requesting the accommodation.[3]

The purpose of this bulletin is to explain the important guidance provided by EEOC, so that employers may better understand their authority, and the limitations of such authority, under Title VII of the Civil Rights Act of 1964 (Title VII), which governs religious accommodations at the federal level.


Title VII prohibits employment discrimination based on the religion or religious beliefs of an employee.[4]

Where there is a conflict between an employer’s policy or practice and an employee’s sincerely held religious belief, observance, or practice, Title VII provides a statutory right for such an employee to request an accommodation from that policy or practice.[5]

Requesting a Religious Accommodation

The EEOC guidance provides that, while there are no “magic words” that an employee must use in order to request a religious accommodation, the employee’s request must notify the employer of a specific conflict between the employee’s religious belief and the employer’s policy (e.g., a COVID-19 vaccination requirement). If the employee’s request does not identify a conflict with a religious belief held by the employee, then the request is outside the scope of Title VII and not subject to its protections.

While the EEOC recognizes that employees may request religious accommodations either verbally or in writing, from the employer’s perspective written requests are preferable to verbal ones. As a result, in the event that an employer elects to adopt a mandatory vaccination policy, LCW recommends that employers also adopt a standard and uniform accommodation request form for employees to use to make written requests for accommodation.

LCW has a template form available and can help employers customize the form to meet their specific needs. (Note: The form can be found in the “LCW Sample COVID-19 Personnel Policies” workbook.)

Evaluating Religious Accommodation Requests

The EEOC guidance makes clear that employers, in evaluating employee religious accommodation requests, must handle such requests on a case-by-case basis and make individualized inquiries based on the information provided by the employee in order to determine whether the employee qualifies for an accommodation.

Relatedly, the EEOC guidance also provides that employers must engage in a comparable case-by-case analysis at the end of the process in order to determine whether the accommodation requested by the employee is reasonable. We will discuss this later in the bulletin.

When Employers May Seek Additional Information

The EEOC guidance provides two areas where, under certain circumstances, employers may request additional information from the employee in order to determine whether the employee qualifies for an accommodation: (1) the nature of the belief that purportedly precludes the employee from being vaccinated; and (2) whether that belief is sincerely held.

We discuss inquiries into each of these issues in turn.

Nature of a Belief that Purportedly Precludes Vaccination

There are two components to inquiries about the nature of a belief that purportedly precludes vaccination: (1) whether the belief is specific and actually precludes vaccination; and (2) whether the belief is religious in nature.

The EEOC indicates that, where an employee’s request provides that the employer’s vaccination requirement may conflict with the employee’s beliefs, but does not actually identify a specific conflict between the policy and belief, the employer may reasonably ask the employee to provide additional information in order to identify the specific conflict that precludes vaccination.

The EEOC also provides that an employer may need to request additional information to determine whether the belief that precludes vaccination is religious in nature or another type of belief (e.g., personal, political or philosophical) that is not religious and not afforded Title VII protection. If the requesting employee is unable to articulate a religious basis for their refusal to comply with their employer’s COVID-19 vaccination requirement, the EEOC provides that the request would not be covered by Title VII.

While there are certain general questions that an employer may, in most instances ask of employees requesting accommodation[6], LCW recommends that employers develop specific questions with legal counsel’s guidance after reviewing the employees’ religious accommodation request forms and their stated reasons as to why their beliefs preclude compliance with a vaccination requirement.

Sincerity of the Religious Belief

The EEOC guidance also discusses the sincerity of employee’s purported religious beliefs and the limited instances when an employer may question employee’s beliefs.

The EEOC guidance provides that, where an employer has an objective basis to question an employee’s sincerity or credibility in claiming a religious basis for their refusal to be vaccinated, an employer may ask the employee questions in order to gauge the sincerity of their purported belief.

The EEOC provides that such a basis may exist as a result of one or more of the following circumstances: (1) the employee has acted inconsistently with the professed belief; (2) the accommodation sought by the employee is particularly desirable and likely to be sought for nonreligious reasons; and (3) where the timing of the employee’s request makes that request suspect (e.g., where the employee recently requested the same accommodation for nonreligious reasons).

However, the EEOC also recognizes some limitations to relying on these guideposts. For example, the EEOC acknowledges that employees’ religious beliefs may change over time and that employees may not, at all times, scrupulously observe their beliefs. While this hedging may dissuade risk-averse employers from directly applying the factors identified above, more risk-tolerant employers may still employ the factors.

Employers should consider their risk tolerance and understand that seeking additional information without an objective basis to question the employee’s belief may give rise to claims of wrongful denial of an accommodation or even retaliation.

“Undue Hardship” under Title VII

The EEOC provides that an employer is not required to grant an accommodation request where the requested accommodation would impose an undue hardship on the employer or its operations.

For the purposes of Title VII, “undue hardship” means more than a de minimis cost.[7] The EEOC guidance highlights situations where undue hardship occurred because the accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the requesting employee’s share of potentially hazardous work.

While the EEOC provides that an employer’s determination as to the reasonableness of the request should be individualized, the EEOC also acknowledges that employers may consider the total number of employees who are seeking similar accommodations (e.g., weekly COVID-19 testing in lieu of vaccination) such that the employer may consider the cumulative cost of providing each of those individuals the requested accommodation and the burden on the employer. This should not be a speculative exercise based on potential and unknown costs, but should be based on the real or actual cost of providing a number of employees similar accommodations.

California Caveat: While Title VII considers “undue hardship” to be “more than a de minimis cost,” California employers that are covered by the Fair Employment and Housing Act (FEHA) have a separate obligation to accommodate employees’ sincerely held religious beliefs.[8] The FEHA defines “undue hardship” as an action requiring significant difficulty or expense,[9] which is a higher standard than that under Title VII. As a result, California employers covered by the FEHA must adhere to the more demanding requirement and observe the FEHA standard.

Given the increase in COVID-19 vaccination requirements, employers across the state are struggling with questions about how to process employee requests for religious accommodation.

LCW attorneys are experienced in COVID-19 matters and religious accommodation requests, and are available to help employers comply with the resulting obligations.

[1] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws, October 25, 2021, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Last viewed on October 28, 2021) (EEOC COVID-19 Guidance).

[2] EEOC, Section 12: Religious Discrimination, January 15, 2021, https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination (Last viewed on October 27, 2021).

[3] Specifically, the new section addresses the following points: (1) What employees must include in a request for religious accommodation; (2) under which circumstances an employer may ask additional questions; (3) the “undue hardship” standard under Title VII; (4) the individualized nature of accommodation requests; (5) whether employers must provide a specific accommodation (such as the one requested by the employee); and (6) continuing obligations and opportunities to reevaluate accommodations over time. (See EEOC COVID-19 Guidance, supra note 1, Section L.) Rather than repeat the new section in its current order, this bulletin synthesizes the major topics and presents them in the way they may appear during a religious accommodation process.

[4] 42 U.S.C. § 2000e-2(a). Note: Title VII also prevents religious discrimination against applicants for employment (failure to hire or adverse employment actions).

[5] Note: This bulletin uses the phrase, “religious belief” rather than “religious beliefs, observances, and practices” to facilitate the readability of the piece.

[6] Although each religious accommodation request is an individualized inquiry, the following examples are questions that may apply more broadly:
(a) “Please describe the nature of your religious beliefs, practices, or observances.”
(b) “How long have you held such beliefs?”
(c) “How does the agency’s vaccination requirement conflict with your beliefs?”

(d) “Do you have any additional information that you would like to share regarding your religious beliefs that supports your request for accommodation?”

[7] Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63, 84.

[8] Gov. Code, § 12940 subd. (a).

[9] Gov. Code, § 12926 subd. (u).

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice. 

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