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March 17, 2022

EEOC Updates Pandemic-Related Guidance

It has been a busy month for the Equal Employment Opportunity Commission (EEOC) as it continues to provide guidance to employers on important pandemic-related issues. The EEOC is the federal agency tasked with overseeing enforcement of Title VII of the Civil Rights Act of 1964 (Title VII). The two COVID-19-related topics recently updated as part of the EEOC’s “What You Should Know” guide are the Religious Objections to COVID-19 Vaccine Requirements (March 1, 2022) and COVID-19-related Caregivers/Family Responsibilities (March 14, 2022) sections. An additional technical assistance document,  The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws was also released on March 14th.  This resource applies existing federal employment discrimination legal principles that involve caregivers to real-world COVID-19 workplace situations.

Key takeaways from each of these updates are provided below.

Religious Objections to COVID-19 Vaccine Requirements:

  • There are no “magic words” that an employee must use when communicating with their employer about a religious objection to receiving a COVID-19 vaccination. However, employees are required to “explain the conflict and the religious basis for it.”
  • An employee’s request must be based on a “sincerely held religious belief, practice or observance.” Employers with an “objective basis for questioning either the religious nature or the sincerity of a particular belief” may make a limited factual inquiry seeking additional supporting information.
  • An employee’s sincerity in holding a religious belief is “largely a matter of credibility.” Employers should keep in mind that several factors, alone or in combination, may impact that credibility (e.g., has the employee acted in a manner inconsistent with the professed belief or is the timing of the request suspect). 
  • Employees and applicants should be provided with information about the proper procedure for requesting a religious accommodation and whom to contact.
  • Given the “extraordinary circumstances facing employers and employees due to the COVID-19 pandemic” the EEOC has made its own internal Religious Accommodation Request Form available for download.[i]

The EEOC guidance on this issue also includes cautionary words for employers who question the sincerity of the employee’s religious belief, practice or observance:

  • “Newly adopted or inconsistently observed practices may nevertheless be sincerely held.”
  • “No one factor or consideration is determinative;” and
  • “Employers should evaluate religious objections on an individual basis”[ii]

COVID-19-related Caregivers/Family Responsibilities:

  • Caregiver stereotyping can result in violations of Title VII. Employers must be mindful of avoiding gender-based assumption about who may have caregiving responsibilities.
  • Caregiver discrimination can also be unlawful if it is based on the caregiver’s association with an individual (receiving care) who has a disability or falls under any other protected classification (e.g., race, age, ethnicity).
  • Caregiver protection is provided to workers with any type of caregiving responsibilities (e.g., children, spouses, partners, relatives, or others).

The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws document includes references to several different types of potential pandemic-related caregiver discrimination issues. For example, employer inquires about family members with COVID-19 or related symptoms, addressing whether an employee is entitled to a reasonable accommodation to avoid potential exposure to a high-risk family member and COVID-19 pregnancy accommodation-related requests.

Members with questions about COVID-19-related accommodation requests should contact Western Growers. For a more in-depth discussion on responding to religious based accommodation requests: Religious Accommodation – Are There Limits? (Oct. 2021 WG).

[i] The form must be edited and adapted for private use.

[ii] Employers who have reason to suspect the sincerity of a religious belief, practice or observation should consult with legal counsel before denying a requested accommodation.