Compliance Matters TM
Responding To Vaccine Mandate Religious Accommodation Requests
(COVID-19 Update)

As we previously reported, in response to rising COVID-19 transmission nationwide, President Biden announced widespread vaccination mandates applying to millions of employees in the United States. Although there is significant doubt whether the Biden vaccination rule will survive the present court challenges, employers who nevertheless opt to impose a vaccination mandate should be aware of the rules they must follow whenever an employee asserts a need for a religious accommodation from the mandate.
In California, employers must know and follow both state and federal laws on religious discrimination in the workplace. The state law is part of the state’s Fair Employment and Housing Act. The federal law is part of Title VII of the Civil Rights Act of 1964, as amended. The laws take a different approach and employers in California must apply both. We explain below.
Federal Law
On October 25, 2021, the federal agency known as the Equal Employment Opportunity Commission ("EEOC") expanded their guidance under Title VII on how employers should approach requests for religious exemptions to the COVID-19 vaccine requirement. The guidelines provide that an employer must provide a reasonable accommodation to employees whose religious beliefs conflict with the COVID-19 vaccine requirement, unless the accommodation poses an undue hardship to the employer. A summary of the updated guidance is described below. 
Definition of a "Sincerely Held Religious Belief." The EEOC guidance explains that the definition of religion is broad and protects all beliefs, practices, and observances. In other words, an employer can generally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, even if the belief is unknown to the employer. However, an employee’s political, social, economic, or secular views are not grounds for an exemption.
If an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer may request that the employee explain how their religious belief conflicts with the vaccination requirement. In assessing the matter, the EEOC says that employers may rely upon the following: 
  • if the employee behaved in a manner markedly inconsistent with the belief;
  • if the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • if the timing of the request is suspicious (e.g., the request follows a previous request made by the employee for the same accommodation for non-religious reasons); and,
  • if the employer has another reason to believe the accommodation is not sought for religious reasons.
However, the EEOC clarifies that none of these factors are dispositive and an "employer should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion, or because the employee adheres to some common practices but not others."
Employers Must Be on Notice of the Religious Belief. Employers do not need to provide an accommodation unless they are on notice. Thus, before the accommodation process begins, an employee must notify the employer that there is a conflict between his or her sincerely held religious beliefs, practices, or observances, and the COVID-19 vaccination requirement.
The Accommodation Must Not Pose an Undue Hardship. After an employer is on notice, the employer must provide a reasonable accommodation for the employee unless it would pose an undue hardship.  An "undue hardship" is defined as an accommodation that would require the employer to bear more than a de minimis cost or burden. Direct monetary costs and the risk of spreading COVID-19 to others are some examples of considerations when assessing the undue hardship. Employers may consider having unvaccinated employees wear a face mask, social distance, or get tested for COVID-19 periodically. 
As employees may have been working remotely during the pandemic, an issue is raised as to the impact of past telework on the reasonableness of continued telework as an accommodation. EEOC guidance provides that an employer is not required to grant telework as a reasonable accommodation just because employees were working remotely during the pandemic. The EEOC guidance explains that "[t]he employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules."
Further, if there is more than one accommodation available to the employee, the employer may choose which accommodation to offer. If an employer does not choose an employee’s preferred accommodation, they should explain to the employee why that accommodation is not granted. 
Employers May Reconsider Religious Accommodations. Employers can reevaluate requests for religious exemptions to the COVID-19 vaccine requirement if circumstances evolve over time. For instance, an employee’s religious beliefs may change or a religious accommodation may later pose an undue hardship on an employer. Employers should, however, discuss concerns with the employee and consider alternative accommodations before revoking a religious accommodation.
Employers May Grant Accommodations on a Case by Case Basis.  If an employer is determining 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. For instance, an accommodation may be possible for an employee who works in an office and can close the door, but not for an employee who is required to work alongside those with health issues.
California’s Approach To the Matter
California's standard to define "undue hardship" is more demanding than the federal standard. In 2013, the California Workplace Religious Freedom Act of 2012 (“WRFA”) amended FEHA’s religious discrimination provisions. 
“Undue hardship” is defined by the Government Code as “an action requiring significant difficulty or expense.”  Cal. Gov. Code § 12926(u). The Government Code provides the following factors to determine undue hardship:
  • The nature of the accommodation needed;
  • The overall financial resources of the facilities in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility;
  • The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities;
  •  The type of operations, including the composition, structure, and functions of the workforce of the entity; and
  • The geographic separateness or administrative or fiscal relationship of the facility or facilities.
The Regulations provide an additional set of factors for consideration:
  • The size of the relevant establishment or facility with respect to the number of employees, the size of the budget, and other such matters;
  • The overall size of the employer or other covered entity with respect to the number of employees, number and type of facilities, and size of budget;
  • The type of the establishments of facility’s operation, including the composition and structure of the workforce or membership;
  • The nature and cost of the accommodation involved;
  • Reasonable notice to the employer or other covered entity of the need for accommodation; and
  • Any available alternative means of accommodation. CCR § 11062(b).
There is little caselaw to determine undue hardship in the context of religious accommodation under FEHA, especially using the new undue hardship standard established in 2013. However, unpublished cases, analogous disability cases, and Title VII cases provide some useful insight beyond the regulations. For instance, in a case where FedEx refused to allow a “handler” employee to work remotely as a reasonable accommodation for her disability, the employer argued that two of her essential functions could only be performed at the office location. Jones v. FedEx Corp. Servs., 2020 U.S. Dist. LEXIS 247098, at *2-6 (C.D. Cal. Aug. 24, 2020). The Central District of California held that a reasonable jury could conclude that FedEx failed to reasonably accommodate plaintiff's disability because there was insufficient evidence of the employee’s job duties and similar employees were permitted to have laptops and work from home. Id. at *19-21.
Given the higher burden on California employers, interpreting what constitutes an "undue burden" in the context of vaccinations is complex. Many potential accommodations, such as COVID-19 testing can be expensive or decrease efficiency in the workplace. However, accommodations should be determined on a case-by-case basis and employers should consider an employee’s specific duties and other circumstances before making a decision.
Best Practices for Employers
COVID-19 guidance is continually changing and there is an increase of lawsuits related to the denial of accommodations. Employers should thus ensure that there is a process in place for such accommodation requests. Each accommodation request must be handled carefully and documented in writing. Employers should further prepare for these challenges by currently assessing accommodation options that would avoid undue hardship.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at

Richard S. Rosenberg
Katherine A. Hren
Sherry N. Shayan
Ballard Rosenberg Golper & Savitt, LLP 
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