Legal Update – November/December 2021


New Guidance from the EEOC on Religious Accommodation and Vaccine Mandates

On October 25, 2021, the Equal Employment Opportunity Commission (“EEOC”) added a new section to its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, related to religious objections to vaccine mandates.  Employers who receive religious accommodation requests should read the new EEOC guidance in its entirety, located in section L on the EEOC website.  Below are highlights from the religious accommodation-based questions and answers.

Employees need not use “magic words” to request an accommodation.

To request a religious accommodation, an employee needs only to notify the employer of a conflict between a “sincerely held religious belief, practice, or observance” and the vaccine requirement. The EEOC’s updated guidance emphasizes that “employees do not need to use any ‘magic words,’ such as ‘religious accommodation’ or ‘Title VII.’”

As a “best practice,” the EEOC recommends that employers provide applicants and employees with information that specifies (1) the designated employer representative(s) that they should contact and (2) the procedures they are expected to use when making religious accommodation requests.  Designing an accommodation process for religious (and disability) vaccine exemption requests and communicating this process to employees will help stave off potential claims that an employer did not adequately process an employee’s exemption request.

Employers may analyze certain factors when considering the sincerity or religious nature of a belief.

Employers should generally assume that an employee’s request for religious accommodation is based on sincerely held beliefs.  However, employers may make a “limited factual inquiry” to determine whether there may be an “objective basis for questioning either the religious nature or the sincerity of a particular belief.”  An employer is permitted to ask an employee questions to establish an employee’s sincere religious belief.  Such questions could be: what is your religion, where do you practice your faith, what book or published account substantiates your objection to vaccines?  The EEOC notes that “[a]n employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.”

The EEOC points out that Title VII’s definition of “religion” also “protects nontraditional religious beliefs that may be unfamiliar to employers.”  This means that an employer should not assume that a request for an exemption to a vaccine requirement is invalid only because it is based on an unfamiliar religious belief, but “employees may be asked to explain the religious nature of their belief.”

Employers may consider rejecting an accommodation request based on “undue hardship.”

Even if the objection is religious and very sincere, the employer may not have to accommodate if doing so would create an “undue hardship” on the employer and their operations.  An undue hardship may arise if the accommodation would cause more than “de minimis” costs to the employer.  Employers may find an undue hardship and reject a religious accommodation request if they determine that the accommodation will:

  • cause the employer to incur direct monetary costs;
  • burden or disrupt the employer’s business by, for example, increasing the risk of spreading COVID-19 to other employees or the public;
  • impair workplace safety;
  • diminish efficiency in other jobs; or
  • cause co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

In sum, if an employer can prove that a religious accommodation makes other employees unsafe, over-worked, or severely inconvenienced, that may be enough to prove that there is an undue hardship.  Additionally, employers have discretion to grant some employees religious accommodations from vaccine requirements while refusing others.

The need for, and use of, religious-based accommodations may change over time.

If an employer grants an employee a religious accommodation, the employer is not obligated to offer the employee that same accommodation indefinitely.  Employers may revoke a previously granted accommodation if it is no longer being used for religious purposes or if the accommodation “subsequently poses an undue hardship on the employer’s operations due to changed circumstances.”

Another situation where the accommodation may only be temporary is if an employee or applicant is waiting for a specific brand of vaccine or an alternative version of the vaccine to become available because the individual has a conflict with receiving the vaccine offered by the employer.


Understanding the considerations relevant to COVID-19 vaccine-related accommodations and handling those requests with sensitivity is important to maintaining a cohesive workplace and avoiding claims that the employer improperly denied accommodation requests based on religious beliefs.  The EEOC’s guidance puts emphasis on flexibility when evaluating requests for religious exceptions from vaccine mandates.  Importantly, employers should establish a centralized process for the submission and consideration of accommodation requests and make sure that employees are aware of the process.  This is an ever-changing landscape and employers need to continue to stay up to date with the latest guidance and change policies as circumstances change.


Long Awaited OSHA Vaccination Requirement on Hold

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its highly anticipated Emergency Temporary Standard (“ETS”) requiring companies with 100 or more employees to mandate COVID-19 vaccination or weekly testing for most of their employees.  The rule took effect on Friday, November 5th and was halted on Saturday when a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit granted an emergency stay of the ETS.  This article will outline the requirements for employers so that they can prepare for the mandate if it is upheld in the courts.

Of note, the ETSs does not apply to the following:

  • Workplaces or settings where any employee provides health care services or health care support subject to OSHA’s Healthcare ETS published in June 2021;
  • Workplaces covered under the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors or Subcontractors; or
  • Certain remote workers or those who work exclusively outdoors.

Key Requirements

The ETS will go into effect December 5, 2021, if it survives pending legal challenges.  To comply, private employers with 100 or more employees must do the following:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy or a policy allowing unvaccinated employees to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee and collect and maintain proof of vaccination.
  • Provide employees up to four hours of paid time to get vaccinated and to recover from any side effects.
  • Require all unvaccinated employees to be tested weekly (if in the workplace at least once a week) or within seven days before returning to the workplace (if away from the workplace for a week or longer) at no cost to the employer unless required by other laws, regulations, or collective bargaining agreements.
  • Implement notification protocols for when an employee is diagnosed with or tests positive for COVID-19 and remove those employees from the workplace until cleared to return under applicable guidelines.
  • Require unvaccinated employees to wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Retain accurate records of both vaccination status and COVID-19 test results.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related COVID-19 hospitalizations within 24 hours of the employer learning about the hospitalization.

Another key deadline is January 4, 2022.  By this date, covered employers must comply with the following requirements:

  • Any employee who is not fully vaccinated must undergo weekly COVID-19 testing and provide documentation of the test results to the employer no later than the seventh day following the date of the employee’s last test result.
  • Any unvaccinated employee who fails to provide proper or timely COVID-19 test result must be removed from the workplace until the test result is provided.

Note that the requirements do not apply to employees who do not report to a workplace where other individuals are present, employees who work from home, or employees who work exclusively outdoors.  Also, booster shots are not included in the ETS definition of “fully vaccinated,” and therefore, employers do not need to require receipt of a COVID-19 booster.


Employers who fail to comply with the ETS may be subject to OSHA penalties, including heightened penalties for willful or repeated violations of up to $136,532 per violation.  Additionally, although the ETS does not require employers to monitor for or detect fraud by employees, if the employer knowingly accepts fraudulent proof from an employee, the employer may be subject to criminal penalties.


Under the U.S. Constitution’s Supremacy Clause, federal law generally prevails over conflicting state laws.  OSHA intends for the ETS to preempt any state or local requirements that ban or limit an employer from requiring vaccination, face covering, or testing.

Legal Challenges

The petitioners in the Fifth Circuit case are seeking to permanently block the ETS from going into effect.  According to the Fifth Circuit panel that ruled in their favor, there is “cause to believe there are grave statutory and constitutional issues with the [ETS].”  The more than two dozen states, businesses, and religious organizations that have sued to stop the ETS are calling the rule an overreach of government authority.  The petitioners claim that OSHA does not have the legal authority to issue a rule to address a society-wide health concern.  In a court brief flied on November 8, 2021, White House administration officials warned that maintaining the stay “would endanger many thousands of people.”  The administration also argued that “[w]ith the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming.”

In addition to the Fifth Circuit case, there are legal challenges to the ETS in the Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits.  As such, federal law dictates that the cases be consolidated and heard by one federal appeals court, chosen by lottery.  Ultimately, the case is likely to be heard by the Supreme Court.

Next Steps

Though the ETS is facing many legal challenges, employers should prepare for the implementation of the ETS in case it is upheld in court.  First, employers should determine whether they are a covered employer under the ETS.  Next, covered employers should review existing workplace policies, including existing COVID-19 health and safety screening protocols, to ensure policies are in compliance with the ETS requirements.  Employers should notify employees, as outlined in the ETS, if the ETS goes into effect.  Employers should be prepared for an increase in employee questions and concerns related to the ETS requirements.  It is advisable to establish a strategy to ensure clear communication so that employees know what is required and are able to have their concerns heard and addressed within the parameters of the ETS.

Stay tuned here for updates as this issue develops.