The US Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance, detailing its view of employer obligations under Title VII when evaluating religious objections to COVID-19 vaccination mandates. The EEOC also added guidance on requests for accommodation based on pregnancy under the Americans with Disabilities Act and the Pregnancy Discrimination Act. Together, these comprise the second significant update to EEOC’s COVID-19 guidance since the FDA and CDC authorized COVID-19 vaccines.
Employers who implemented vaccine mandates have faced a tidal wave of requests for religious exemptions. The sheer volume of requests combined with the difficulty of separating protected versus unprotected claims, all while respecting an employee’s stated beliefs, has been a significant challenge for human resources and legal departments. With these latest updates, made on October 13, and October 25, 2021, the EEOC has attempted to provide clearer guidance to employers on accommodation requests.
The EEOC’s October 25 guidance mainly reiterates prior EEOC statements on religious accommodations, particularly those issued in its January 2021 update to its Religious Discrimination Compliance Manual Section. Still, the new guidance tailors those general principles to vaccine mandate accommodation requests, providing helpful clarifications that support common employer practices for handling these claims. For example, the October 25 guidance clarifies the EEOC’s position regarding the following:
In addition to the section on religious exemptions, on October 13, the EEOC updated its guidance on handling requests from pregnant employees. The EEOC reiterated its position that the Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act may trigger accommodation requirements for pregnant employees in certain circumstances, including when pregnant employees refuse to receive a COVID-19 vaccine due to pregnancy. For instance, although pregnancy alone is not a disability under the ADA, the ADA may still require reasonable accommodations, depending on the facts, for requests tied to pregnancy-related medical conditions that themselves constitute disabilities under the ADA.
Employers should find some comfort in the update, as it more clearly delineates acceptable criteria to consider when evaluating requests for religious accommodation in the COVID-19 context. This is particularly true of the EEOC’s guidance confirming an employer’s right to request additional information from employees when there is an objective reason to doubt the religious nature or sincerity of a vaccine mandate religious accommodation request. In addition, although courts already had indicated that employers may rely on the cumulative impact of multiple requests when conducting an undue hardship analysis, this guidance further supports such a practice. Relying on the cumulative impact may be particularly valuable given the current state of affairs where employers face numerous religious accommodation requests at the same time.
These issues will take on added importance as employers begin to comply with requirements for vaccine mandates (for example, those for federal contractors) and develop policies in response to the expected vaccination and testing requirements in the anticipated Emergency Temporary Standard from the Occupational Safety and Health Administration. Employers should continue to monitor developments closely in this area and consult with legal counsel on specific questions.
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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Jacqueline C. Aguilera
Daryl S. Landy
A. Klair Fitzpatrick
Alicia J. Farquhar