EEOC Updates COVID-19 Guidance on Retaliation and Religious Exemptions

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 technical assistance on employer retaliation and vaccine-related religious accommodation requests.

The federal agency explains in the section on retaliation that:

• Employers cannot retaliate against employees who file charges alleging their supervisor unlawfully disclosed confidential medical information such as a COVID-19 diagnosis
• Employers cannot take adverse action against an Asian American employee who complains that a coworker accused Asians of spreading COVID-19
• Requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is legally protected under federal anti-discrimination laws

Here are some key updates to know in regard to retaliation in the workplace.

Key retaliation updates

The federal agency said the guidance includes several “key updates” including that:

• Current and former employees and job applicants who take advantage of their rights under the anti-discrimination laws enforced by the EEOC are protected from retaliation.
• Legally protected activity has many forms. It can include filing a charge of discrimination, complaining to a supervisor about coworker harassment, and requesting an accommodation regardless of whether the request is granted or denied.
• In addition to an employer ban on retaliation for equal employment opportunity activity, the Americans with Disabilities Act (ADA) also forbids interference with an individual’s exercise of rights under the ADA.

Legally protected activity has many forms. It can include filing a charge of discrimination, complaining to a supervisor about coworker harassment, and requesting an accommodation regardless of whether the request is granted or denied.

The agency also noted in the technical assistance that equal employment opportunity laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens.

The EEOC currently has a case pending in the federal courts. It alleges that an employer who provides office maintenance services violated federal disability law by refusing an employee’s request to telework after the office reopened. The employer allowed others to work from home because of the pandemic.

Information on retaliation was updated November 17.

The top EEOC discrimination claim: retaliation

Retaliation claims are a leading cause of EEOC complaints. “Retaliation is the most frequently alleged form of discrimination in the EEOC’s charges overall and has been at the top for too many years,” EEOC Chair Charlotte A. Burrows said in a November 2021 news statement.

The Commission received 67,448 charges of workplace discrimination in Fiscal Year (FY) 2020. More than half of the cases – 55.8% — alleged retaliation. Accusations of bias based on disability were the 2nd highest – 36.1% — category. Allegations of race and sex were next. Race bias claims came in 3rd at 32.7% of claims; age discrimination came in 4th, making up 31.7% of the claims.

Feds going after employer retaliation

The EEOC also noted that it is a participant in a new interagency initiative, along with the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB), aimed at ending retaliation against workers who exercise their legally protected labor and employment law rights. The initiative launched November 17.

Religious exemption for vaccines updated

Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.

In another update, the EEOC revised its guidance discussing religious exemptions for COVID-19 vaccination requirements.

Employers can require that physically present in the workplace get fully vaccinated against the coronavirus. However, Title VII of the Civil Rights Act of 1964 and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, cannot get the COVID-19 vaccination, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.

The update explains that:

• Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance. The employees do not have to use specific terms or language.
• Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement. The commission also noted that, while an employer should assume that the workers’ religious beliefs is sincere, organizations can engage in a “limited factual inquiry into the sincerity of the belief if there is an objective basis for the inquiry.”
• Employers that prove “undue hardship” do not have to accommodate an employee’s request for a religious accommodation.

Examining an employee’s religious beliefs

Factors that employers can use to determine the employee’s sincerity over religious beliefs include:

• Whether the employee has acted in a manner inconsistent with the belief. Scrupulous observance of religious beliefs is not a requirement
• Whether the accommodation the employee seeks is a particularly desirable benefit that they’re likely seeking for nonreligious reasons
• Whether the timing of the request makes it suspect. For example, does the request come after an earlier request by the employee for the same benefit for secular reasons
• Whether the employer believes the accommodation is not for religious reasons

No factor is more important than the others, according to the EEOC. Employers should evaluate each request on an individual basis, the federal agency recommends.

Undue hardship

An employer will need to assess undue hardship. They can do this by:

• Considering the facts of each situation, and
• Showing how much cost or disruption the employee’s proposed accommodation would involve

Another relevant consideration, the EEOC said, is the number of employees who are seeking a similar accommodation.

An employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment, the Commission said in the guidance. If an employer can’t accommodate an employee, it should determine if other rights apply under the other equal employment opportunity laws, the EEOC said. They could be local, state, or federal.

The guidance updated October 25.

Several states have recently enacted laws that limit workplace vaccine mandates. Alabama, for example, approved a law that took effect November 5 that requires employers to allow medical and religious exemptions to Covid-19 vaccine mandates. On November 23, Kansas Gov. Laura Kelly signed into law a measure that broadens exemptions from employer COVID-19 vaccine mandates.

Vaccine exemptions requests are increasing

As employers impose vaccine mandates, the number of employees seeking exemptions on medical and religious grounds have skyrocketed.

The HR Policy Association asked the Commission to clarify how workers can qualify for medical and religious exemptions from Covid-19 vaccine mandates and what reasonable accommodations should look like. The organization said in an October 21 letter to the federal agency that members who had enacted vaccine requirements were receiving thousands of exemption requests.

Exemptions, especially religious excusals, have been the focus of several lawsuits.