EEOC Issues Updated Guidance to Employers for COVID-19 Related Issues

In the wake of the new Emergency Temporary Standard (ETS) published by OSHA on Nov. 5, 2021, employers have been left with a number of practical questions regarding enforcement and employee exemptions. The EEOC updated its technical guidance on Nov. 17 to address the most common questions related to COVID-19 in the workplace.

Religious Objections to Vaccinations

Employers may require all employees entering the workplace to be vaccinated against COVID-19, subject to the reasonable accommodations provisions of Title VII, the ADA, and other equal employment opportunity (EEO) considerations. As COVID-19 vaccinations become mandatory, employers are increasingly faced with requests for reasonable accommodations, often based on religious beliefs.

Title VII prohibits religious discrimination in employment and permits employees to request a religious accommodation from job requirements conflicting with their sincerely held religious beliefs. An employer who is able to reasonably accommodate the employee’s religious beliefs without undue hardship must do so.

An employee must inform their employer that they are seeking to be exempt from the vaccination requirement because it conflicts with a sincerely held religious belief. Providing an easily accessible accommodation request form to employees can alleviate confusion and complaints in the workplace. An example of a religious accommodation request form that complies with the EEOC’s guidance may be found here.

Although an employer should generally assume the employee’s religious belief is sincere, a limited factual inquiry is permitted if an objective basis exists for doubting the sincerity or religious nature of the belief. An employer may also request an explanation as to why the employee’s beliefs conflict with receiving the COVID-19 vaccination. In determining the credibility of an employee’s sincerely held belief, an employer may consider factors such as whether the employee seeks an accommodation conferring a benefit most likely sought for nonreligious reasons, whether the timing is suspect, and whether the employee previously acted in a manner inconsistent with the professed belief.

Undue Hardships

An employer may demonstrate undue hardship if required to bear more than a “de minimis” cost to accommodate the employee’s religious belief. Undue hardship may also be based on a decrease in workplace efficiency and safety, whether other employees must shoulder the accommodated employee’s job responsibilities, or whether the number of employees requesting an accommodation is burdensome in the aggregate. 

Additionally, an employer may choose to grant some religious accommodations while denying others, provided the denial is based on a factual consideration of each case, or may offer an alternative accommodation to the one requested. The employer should provide an explanation to the employee if the preferred accommodation is not granted.


Job applicants, current, and former employees may not be retaliated against for exercising rights related to workplace discrimination or engaging in “protected activity.” Requesting an accommodation is considered a protected activity, even if the employee is not legally entitled to the accommodation.

Other examples of protected employee activity related to COVID-19 include filing an EEOC charge alleging an employer unlawfully disclosed a COVID-19 diagnosis or reporting workplace harassment stemming from an employee’s religious reasons for remaining unvaccinated.

Notwithstanding these protections, an employer may still discipline an employee who engages in protected activity, provided the action taken is based on legitimate reasons such as poor job performance or misconduct. Likewise, an employer may enforce COVID-19 protocols in a non-discriminatory and non-retaliatory manner, even if enforcement follows a request for accommodation that would be considered protected EEO activity.

If you have questions about how the guidance specifically applies to your workplace, please contact your local Cranfill Sumner LLP attorney.