EEOC and Illinois Updates: COVID-Related Religious Exemptions

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In COVID time, the world continues to spin at a lightning-fast pace. Workers across the country are increasingly facing employers’ demands to get a COVID shot or to lose their jobs. A host of issues accompanies such requirement - public policy, legal, moral, religious, health, and political – and such issues can be highly divisive. On the religious aspects, two important developments occurred this week. First, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance addressing key aspects of religious exemptions.[1] Second, with respect to Illinois workplaces, the Illinois state legislature moved swiftly to sharply curtail religious right of conscience protections – with the Governor’s expected approval to follow.

EEOC Background

Title VII of the Civil Rights Act is the federal law that protects employees from religious-based and other types of discrimination. As the EEOC instructed in its January 2021 updates, such protection allows employees to seek religious protections related to “attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, and refraining from certain activities.” [2] The scope of available legal protection for “sincerely held religious beliefs” is necessarily wide, although not without limits. An employer must “reasonably accommodate” an employee’s request, unless it cannot do so without “undue hardship” on operations.

The EEOC serves as the federal enforcement agency for discrimination matters, handling employee claims as a precondition to any litigation. Analogous state and local anti-discrimination laws abound, providing additional protection for employees. Notably, Title VII applies only to employers with at least 15 employees, while many state and local laws impose a much lower employee-count threshold.

EEOC – Updated Guidance

Presumably in response to the enormous amount of COVID-related religious exemptions sought by employees, as well as related litigation spawned by such requests, the EEOC recently issued guidance styled as six questions and answers – and including a sample “Religious Accommodation Request Form.” In a nutshell, the sincerity of the employee’s religious belief should generally be assumed, and the numerous examples of possible accommodations provided by the EEOC demonstrate that religious accommodations are appropriate in many circumstances.

Additionally, the employer has the burden to evaluate each individual request for an accommodation and show why the accommodation is not required. Employers should thus take care to review requests for religious accommodations to the COVID-19 vaccine and to thoroughly document the decision process.

     Q&A 1: Employee Notification

As the EEOC instructs, employees owe the affirmative responsibility to request a religious accommodation from employers. No “magic words” are required to request an accommodation, but the employee must make their employer aware of the conflict between the employee’s sincerely held religious beliefs and the employer’s COVID-19 shot requirement.

Employers should inform their employees and applicants who to contact and any procedures to use to request a religious accommodation. As a general practice, it is good to establish a policy for how employees may request accommodations for any protected reason, including religious beliefs or practices.

Interestingly, the EEOC has provided a sample religious exemption request form, with the accompanying comment that it is provided “given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.”[3] This form is extremely basic, consisting of only form questions: (1) identify the employer requirement that conflicts with the employee’s sincerely held religious belief; (2) describe the nature of such religious belief; (3) identify the employment-related accommodation or modification request; and (4) list any alternative accommodations that could eliminate the identified conflict.

     Q&A 2: Handling Religious Requests

As the EEOC instructs in Q&A 2, employers should assume that both the religious basis of the objection to the COVID-19 vaccine and the sincerity of the religious belief behind the objection are valid. Such approach is consistent with prior case law and in accordance with First Amendment religious protections generally.

This expansive assumption comes with a caveat: “if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.” For example, the employer may inquire into a nontraditional or unfamiliar religious belief. The employer should not assume, however, that such a belief is invalid. Additionally, the employer may ask the employee to explain the conflict between the religious belief and the vaccine mandate.

According to the EEOC, “the sincerity of an employee’s stated religious beliefs also is not usually in dispute.” Such expression of religious beliefs thus should be respected, within the bounds of “individual credibility.” The EEOC lists relevant factors as including: (1) whether the employee has acted in a manner inconsistent with their professed belief, (2) whether the accommodation sought is particularly desirable to make it likely to be sought for nonreligious reasons, (3) whether the timing of the request is suspect (e.g., following an earlier request for a similar benefit for secular reasons), and (4) whether the employer has other reasons to believe the accommodation is sought for nonreligious reasons.

The EEOC further recognizes that an employee’s religious beliefs may change over time. Therefore, newly adopted or inconsistent practices should not cause the employer to assume the employee’s request is insincere. This is but one factor that may be used to determine the sincerity of the belief. On a related note, “an employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.”

     Q&A 3: Reasonable Accommodations (or Undue Hardship)

Title VII requires employers to provide “reasonable accommodations” (i.e., work-related adjustments) for religious beliefs, unless such an accommodation would create an undue hardship on the employer’s operations. Q&A 3 lists the wide variety of COVID-related accommodations available including remote working arrangements, wearing a mask, regular COVID-19 testing, adjusted schedule, isolated workspace, and temporary reassignment.

Notably, such “accommodations” are already followed on a widespread basis, with remote-work assignments continuing and other health and safety-related modified arrangements in place. It thus seems quite appropriate, for example, for a currently remote-work employee to continue working on such basis as a “reasonable accommodation” based on religious objections.

When does such religious exemption become an undue burden, thereby allowing an employer to refuse a requested reasonable accommodation? Such questions are necessarily fact specific, again focusing on circumstantial matters such as whether the employee “works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).”

     Q&A 4: Multiple Employees’ Accommodation Requests

Again, reasonable accommodation requests depend on the factual context. Multiple employees’ religious exemption requests thus could amount to an undue hardship. Notably, however, “[a] mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship,” although “the employer may take into account the cumulative cost or burden of granting accommodations to other employees.”

     Q&A 5: Employee Preferences for Certain Accommodations

An employer is not legally required to provide the particular accommodation requested by the employee, if another would similarly accommodate the employee’s religious beliefs. An employee’s preference thus should be considered when multiple individual accommodations are available. The process therefore should be respectful of both employees’ needs and preferences as well as employers’ needs. Neither should be casually disregarded, with available alternatives to be considered within specific factual contexts. In other words, blanket vaccine mandates are inappropriate under Title VII’s legal framework for protecting religious liberty protections. If a vaccine requirement is imposed, broad deference to employees’ requests may be warranted – but with ample room too for thoughtful employer evaluation.

     Q&A 6: Reconsideration

A decision to grant or deny a request for religious accommodation is not final. Rather, “the obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.” Consequently, should circumstances change, the employee whose request has been denied may later submit a new request. Correspondingly, an employer may potentially revoke or modify the accommodation granted depending on circumstances. As a final word from the EEOC, “[a]s a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.”

Brief Update - Illinois Legislature’s Liability Changes to Health Care Right of Conscience Act

The Illinois Health Care Right of Conscience Act (745 ILCS 70/1 et seq.,) (“Act”) broadly protects individuals from discrimination if they cannot in good conscience accept or perform certain health care or treatment. Indeed, Section 5 of the Act makes it illegal “for any person, public or private institution, or public official to discriminate against any person in any manner… because of such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.” The Act’s definition of “health care” encompasses COVID shots and testing (and arguably medically based face covering as a type of health care prevention). The Act further confers strong legal rights for adversely affected individuals. If successful in their claims, they are entitled to triple actual damages, pain and suffering, and recovery of attorneys’ fees.[4]

These legal protections are available notwithstanding Illinois Governor Pritzker’s executive order mandates and other regulatory health care directives. In the wake of extensive litigation asserting religious exemptions, the Illinois legislature met this past week and approved a bill, adding language stating that it is not a violation of the law for an employer “to take any measures or impose any requirements …intended to prevent contraction or transmission of COVID-19.”[5] Governor Pritzker is expected to sign this bill into law, thereby undercutting any employer liability arising under the Act. Significantly, however, the effective date is set for June 1, 2022, per a provision of the Illinois state constitution pertaining to bills passed after May 31. Employees and others thus may still enjoy legal protection under the Act, at least until next summer.


[1] The EEOC’s updated guidance can be found here.

[2] See our blog article here, for more guidance about the EEOC’s January 2021 updates.

[3] See here.

[4] For more information about this Illinois law’s available protections and contours, see here.

[5] See here and here. More than 50,000 witness slips were reportedly filed against the bill on the General Assembly’s website, with lawmakers receiving hundreds of calls to their offices against the change.