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EEOC Issues New Vaccine Mandate Guidance and Form for Religious Exemptions, Recordkeeping

Published on: October 29, 2021

Authors: Gregory Hoff

Topics: Employment Law

The Equal Employment Opportunity Commission guidance, containing new Q&As, clarifies obligations for religious exemptions from vaccine mandates under Title VII, addresses recordkeeping requirements associated with employee vaccine information, and separately, provides a form employers can use for processing religious exemptions.  HR Policy submitted a letter to the Commission last week requesting guidance on these and other issues.

The EEOC's updated guidance states employers should assume that a request for a religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer can investigate and seek additional information from the employee. 

Social, political, or personal preferences, or nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” entitling an employee to an exemption from a vaccine mandate and an associated reasonable accommodation, the guidance also emphasizes. 

The guidance states the following factors, alone or in combination, “might undermine an employee’s credibility” regarding their religious belief: 

  • Whether the employee has acted in a manner inconsistent with the professed belief, 
     
  • 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, and/or
     
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

"Undue hardship” is any cost to the employer that is more than minimal, according to the guidance.  If a reasonable accommodation would create an “undue hardship” on an employer’s operations, the employer is not required to provide the accommodation.  The EEOC declined to offer additional examples of acceptable accommodations, and instead referred to previous Q&As issued more than a year ago.  

Recordkeeping requirements clarified:  Per the guidance, regardless of whether an employer retains copies of actual vaccine documentation or simply a record of confirmation that the employee was vaccinated, this information is considered medical information under the ADA and must be kept confidential and stored separately from the employee’s personnel files.

HR Policy letter sought additional guidance:  Our letter asked the EEOC to provide employers greater clarity on questions related to medical and religious exemptions and incentive programs and the associated reasonable accommodation process.   

Meanwhile, the White House indicated that it could be flexible in enforcing the December 8 compliance deadline for federal contractor vaccine mandates, with coronavirus response coordinator Jeff Zients stating that “There is not a cliff here.”  The statements suggest that federal contractors may not be penalized for failing to get all covered employees vaccinated by the December 8 deadline, and they may be given flexibility to ensure all covered employees are vaccinated as soon as possible.  

Outlook:  The updated guidance is timely as employers implementing vaccine mandates are beginning to face an avalanche of religious exemption and accommodation requests.  However, the updates are more a restatement of current law than a comprehensive compliance guide.  Employers should consider creating dedicated internal teams to handle vaccine exemption requests, and avoid “blanket” approaches to such requests, which must be handled on an individual basis.

Gregory Hoff

Associate Counsel, HR Policy Association

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