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EMPLOYMENT LAW UPDATE

New technical guidance on religious exemptions to vaccination

By Mike O’Brien

EEOC Issues New Technical Guidance on Religious Exemptions to Vaccine Mandates

On Oct. 25 the Equal Employment Opportunity Commission (EEOC) issued new updates to its Covid-19 technical guidance. Specifically, the EEOC seeks to clarify employer obligations and employee rights related to religious exemptions to vaccine mandates. The guidance addresses the following questions:

  • Does the employee need to use “magic words” to request an accommodation? Like requests for accommodation of a disability under the ADA, requests for religious accommodation need not use particular words or phrases like “religious accommodation” or “reasonable accommodation.” Instead, they simply need to communicate that there is a conflict between a sincerely held religious belief and a work requirement (such as a vaccine mandate). The EEOC notes that an employee may also have a religious objection to a particular vaccine, and desire to wait for an alternative to become available. A best practice is to provide workers with contact information for the person responsible for weighing requests for accommodation.
  • Does the employer have to accept an employee’s claim of a sincerely held religious belief “at face value”? The EEOC advises that typically, an employer should assume the sincerity of an employee’s claimed religious belief. However, in some circumstances, the employer can seek additional information. Where an employer has an objective basis for questioning the religious nature, or the sincerity, of a worker’s stated religious belief, a “limited factual inquiry” seeking supporting information may be appropriate. Additionally, the employer can ask the employee to explain how the religious belief conflicts with a vaccine requirement.
  • What if an employee fails to cooperate in an employer’s inquiry about the sincerity or religious nature of a particular belief? An employee who refuses to cooperate in an employer’s reasonable inquiry risks losing any later claim that a denial of the request for accommodation was improper.
  • What if a worker’s sincerely held belief is not religious in nature? Title VII protects non-traditional religious beliefs, many of which may be unfamiliar to the employer. However, it does not protect social, political, economic views, or personal preferences. Employees “may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.”
  • How should an employer gauge the sincerity of a particular religious belief? Very carefully. Again, employers should generally assume that a worker’s professed religious belief is sincere. However, when an objective basis for a limited inquiry exists, the employer may weigh factors such as: whether the worker has acted in ways inconsistent with the professed belief; whether the timing of the request makes it suspect; whether the accommodation sought is one that is likely to be sought for non-religious reasons (e.g., is a “particularly desirable benefit”); or, whether the employer has other reasons to believe the worker’s motivation is not religious in nature. Please note that employers should recognize that religious beliefs may change over time. Additionally, insincerity should not be assumed simply “because the employee’s practices deviate from the commonly followed tenets of the employee’s religion,” or because the employee does not follow all the religion’s tenets. The EEOC cautions that “no one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.”
  • What constitutes an undue hardship? Under Title VII, an employer is not required to provide a religious accommodation if doing so imposes an undue hardship. The Supreme Court has defined “undue hardship” under Title VII as “more than a ‘de minimus’ or minimal cost.” Costs to be considered in this analysis include not only direct monetary costs but also “the burden on the conduct of the employee’s business,” including the risk of disease spread to other employees or to the public. When weighing undue hardship, employers should consider “all possible reasonable accommodations, including telework and reassignment.” While the standard for showing undue hardship under Title VII is less challenging for employers than that under the ADA, caution is needed. Employers cannot rely on “speculative hardship,” and must be able to show “how much cost or disruption” the accommodation would require. EEOC advises considering individual circumstances, including whether work is indoors or outdoors, in a group setting or in isolation, and how much close contact the worker has with co-workers or members of the public. The number of workers seeking similar accommodations is also relevant, as the employer may consider the cumulative burden.
  • Does granting a religious exemption to a vaccine requirement for one employee mean that the employer must grant it for all who request an exemption based on religion? No. The EEOC states that “the determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.”
  • What if the employee’s preferred accommodation is not the only one that would be effective? The employer need not provide the exact accommodation sought by the employee. Instead, the employer should consider all possible reasonable accommodations that would resolve the conflict between a religious belief and a vaccine requirement. The employer may choose which one to offer; the employee’s preference should be considered but is not determinative. Ultimately, the employer should explain to the employee why the preferred accommodation is not granted. “Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.”
  • Once granted, can an accommodation be reconsidered later? The EEOC notes the circumstances justifying a religious exemption from a vaccine mandate may change over time and can be re-evaluated if circumstances change. Religious beliefs may evolve, or subsequent undue hardship may arise. In such a situation, the employer should talk with the employee before revoking the accommodation and should weigh whether other possible accommodations would be appropriate.

The full text of the EEOC document is here: EEOC Technical Guidance. (The relevant material is found in section L of the document.) As always, employers should weigh requests for religious accommodation carefully and thoroughly and may wish to seek the assistance of employment law counsel.

White House Issues National Strategy on Gender Equity and Equality

On Oct. 22, 2021, the White House issued a “first-ever” National Strategy on Gender Equity and Equality, “to advance the full participation of all people—including women and girls—in the United States and around the world.” See White House Fact Sheet on National Strategy on Gender Equity and Equality.

This report was created by the White House Gender Policy Council, pursuant to an executive order issued on March 8, 2021. The strategy focuses on “ten interconnected priorities: (1) economic security; (2) gender-based violence; (3) health; (4) education; (5) justice and immigration; (6) human rights and equality under the law; (7) security and humanitarian relief; (8) climate change; (9) science and technology; and (10) democracy, participation, and leadership.

The White House calls “ensuring that all people, regardless of gender, have the opportunity to realize their full potential” a “moral and strategic imperative.” “This moment demands that we build back better, “ the administration argues. “It requires that we acknowledge and address longstanding gender discrimination and the systemic barriers to full participation that have held back women and girls.” The full report may be found here: National Strategy on Gender Equity and Equality. The EEOC has pledged its full support of the administration’s objectives. EEOC Press Release.

Facebook Fined Millions for Alleged Violations of Immigrant Labor Certification Recruitment Requirements

On Octo. 19, 2021, the DOJ and DOL announced separate settlement agreements with Facebook settling its alleged misuse of the permanent labor certification (PERM) program for immigrant workers. Per the lawsuit, Facebook had not been conducting adequate recruitment as part of the Labor Certification process, including but not limited to using more restricted application methods for U.S. workers.

Under the settlement, Facebook will pay a civil penalty of $4.75 million to the U.S., up to $9.5 million to eligible victims of its alleged discrimination, and will train its employees on the anti-discrimination requirements of the Immigration & Naturalization Act.

In addition, Facebook will be required to conduct more expansive advertising and recruitment for all PERM positions, accept electronic resumes, and take other steps to ensure that its PERM recruitment matches its standard practices. Facebook will also be subject to ongoing audits to ensure its compliance.
This section of our Employment Law Update was prepared by Jones Waldo immigration attorney, Lewis Francis.

Tenth Circuit Hands Victory to Workers in Overtime Class Action.

Earlier this month, in a case entitled Peterson v. Nelnet Diversified Solutions, LLC, the Tenth Circuit Court of Appeals sided with over 300 call center employees who alleged that they were owed unpaid overtime. At issue was the time the employees spent at the beginning of every shift booting up their computers and launching certain software applications used to perform their job of communicating with student loan borrowers by phone and email.

A Colorado district court had previously determined that these tasks generally took about two minutes (the workers refute that calculation, arguing it is actually between four and six minutes), and held that the time was “de minimis,” such that it was not compensable under the Fair Labor Standards Act. The Tenth Circuit disagreed, saying: “We conclude that when booting up their computers and launching the software, the [employees] are preparing tools that are both necessary to and an intrinsic part of their principal activities. Therefore, these preshift tasks are compensable principal activities under the FLSA.

Moreover, because [the employer’s] ability to estimate the amount of time at issue and the consistent regularity with which the CCRs perform these activities weigh more heavily than the relatively small size of the claims, in this case, the de minimis doctrine does not apply to excuse [the employer’s] obligation to pay its employees for their work.” Accordingly, the court reversed the trial court’s award of summary judgment for the employer, and the case will move forward to trial.

This case underscores the importance for employers of carefully evaluating these types of regular pre-shift activities to determine whether they are compensable work time under FLSA. Successful plaintiffs in FLSA overtime cases may be awarded back pay, liquidated damages, attorney fees, and litigation costs.

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