EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Religious Accommodation

March 5, 2012

ADDRESS

Dear ____:

Your letter dated February 7, 2011, addressed to the Chair of the U.S. Equal Employment Opportunity Commission (EEOC), has been directed to me for reply. You have inquired about the application of Title VII of the Civil Rights Act of 1964, as amended, to health care workers' requests for exemption from employer-mandated vaccinations, as well as several related issues. Although your correspondence requested that the Commission exercise its discretion to issue a formal interpretation or opinion pursuant to 29 C.F.R. § 1601.91, I am responding by informal discussion letter in light of the information available in existing Commission publications addressing the relevant legal standards.

Infection Control Practices, Vaccination Requirements, and Reasonable Accommodation Generally

As a preliminary matter, we note that the EEOC has addressed matters related to pandemic influenza and vaccinations in its technical assistance document entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (2009), http://www.eeoc.gov/facts/pandemic_flu.html, which includes the following questions and answers about mandatory infection control practices, vaccination requirements, and reasonable accommodation for disability under the ADA or religious beliefs under Title VII:

11. During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

12. During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer's business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

The Title VII principles referenced in these questions and answers would govern the general questions you have raised regarding whether Title VII requires hospitals to accommodate their employees' religious objections to receiving influenza and other vaccines, and under what circumstances such accommodation would not be required. Facts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation.

Scope of Covered Religious Beliefs and Employer Inquiries

In your letter, you inquired about what religious beliefs potentially are entitled to accommodation under Title VII, provided that a reasonable accommodation could be provided without undue hardship. The Commission has addressed these matters extensively in the Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml, and the Compliance Manual, Section 12: Religious Discrimination (2008),

. The Commission and courts have consistently found that Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee's belief or practice can be "religious" under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual's belief or practice, or if few - or no - other people adhere to it. Commission Guidelines, 29 C.F.R. § 1605.1 ("The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee."); Compliance Manual at 6-12; Welsh v. United States, 398 U.S. 333, 343 (1970) (petitioner's beliefs were religious in nature although the church to which he belonged did not teach those beliefs); accord Africa v. Commonwealth of Pa., 662 F.2d 1025, 1032-33 (3d Cir.1981); Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) ("Title VII's intention is to provide protection and accommodation for a broad spectrum of religious practices and belief not merely those beliefs based upon organized or recognized teachings of a particular sect").

The Compliance Manual further explains that Title VII's protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns "ultimate ideas" about "life, purpose, and death." Social, political, or economic philosophies, as well as mere personal preferences, are not "religious" beliefs protected by Title VII.

Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.

You also asked what steps, if any, hospitals may take to scrutinize a requesting employee's beliefs to determine whether the employee's asserted need for accommodation is based on a sincerely held religious belief, and whether hospitals require the requestor to have the support of a religious official. These issues are addressed in great detail, with accompanying examples, in the Compliance Manual, which in pertinent part explains:

Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.

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When an employer requests additional information, employees should provide information that addresses the employer's reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee's own first-hand explanation may be sufficient to alleviate the employer's doubts about the sincerity or religious nature of the employee's professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee's religious practice or belief.

An 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. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.

It also is important to remember that even if an employer concludes that an individual's professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

Compliance Manual at pages 12-14, 48-51 (footnotes omitted). See, e.g., Bushouse, 164 F. Supp. 2d 1066, 1078 & n.18 (court held that union's refusal to provide accommodation unless employee produced independent corroboration that his accommodation request was motivated by a sincerely held religious belief did not violate Title VII's religious accommodation provision, but cautioned that the holding was limited to "the facts and circumstances of the present case" and that "the inquiry [into sincerity] and scope of that inquiry will necessarily vary based upon the individual requesting corroboration and the facts and circumstances of the request").

You further inquired whether hospitals may refuse to accommodate an employee's religious objections to immunizations if, in addition to presenting religious objections to immunizations, the employee submits non-religious, anti-vaccine information. A related matter you have raised is whether a healthcare employee's receipt of vaccines in the past, in and of itself, relieves an employer of the obligation to accommodate the employee's present request for religious accommodation. As the Commission has explained:

Like the "religious" nature of a belief or practice, the "sincerity" of an employee's stated religious belief is usually not in dispute. Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee's asserted religious belief was not sincerely held. Factors that - either alone or in combination - might undermine an employee's assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual's beliefs - or degree of adherence - may change over time, and therefore an employee's newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also 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.

Compliance Manual at 13-14 (footnotes omitted). See, e.g., EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 56-57 & n.8 (1st Cir. 2002) (evidence that Seventh-day Adventist employee had acted in ways inconsistent with the tenets of his religion, for example that he worked five days a week rather than the required six, had lied on an employment application, and took an oath before a notary upon becoming a public employee, can be relevant to the evaluation of sincerity but is not dispositive; the fact that the alleged conflict between plaintiff's beliefs and union membership kept changing might call into question the sincerity of the beliefs or "might simply reflect an evolution in plaintiff's religious views toward a more steadfast opposition to union membership"); Hansard v. Johns-Manville Prods. Corp., 1973 WL 129 (E.D. Tex. Feb. 16, 1973) (employee's contention that he objected to Sunday work for religious reasons was undermined by his very recent history of Sunday work); see also Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001) (employer had a good faith basis to doubt sincerity of employee's professed religious need to wear a beard because he had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no-beard policy), aff'd, 2002 WL 390437 (2d Cir. Mar. 13, 2002) (unpublished); EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (en banc) (Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person; the evidence showed that certain events in her life, including the birth of her son and the death of her father, had strengthened her religious beliefs over the years); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) (that employee had worked the Friday night shift at plant for approximately seven months after her baptism did not establish that she did not hold sincere religious belief against working on Saturdays, considering that 17 months intervened before employee was next required to work on Saturday, and employee's undisputed testimony was that her faith and commitment to her religion grew during this time); EEOC v. IBP, Inc., 824 F. Supp. 147 (C.D. Ill. 1993) (Seventh-day Adventist employee's previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath).

Measures Required in Lieu of Vaccination

You also specifically asked whether an employer that grants a religious accommodation excusing a healthcare worker from a mandatory vaccination may impose additional infection control practices on the worker as a result, such as wearing a mask. While an employer covered by Title VII may not impose such practices for discriminatory or retaliatory reasons, it may do so for legitimate, non-discriminatory and non-retaliatory reasons. Whether the employer's motivation for imposing additional infection control measures was discriminatory or retaliatory would turn on the facts of a given case.

As you may be aware, specific information is available from the Centers for Disease Control (CDC), at https://www.cdc.gov/flu/professionals/vaccination/index.htm, addressing healthcare workers and vaccination, and the government's recommendations for particular types of workplaces and other public settings are modified depending upon the assessment of the public risk at a given time. The U.S. Department of Health and Human Services (HHS) has also been actively considering the issue of vaccination for healthcare workers, and what measures to recommend for implementation in hospitals and other settings, and information about these deliberations is available at http://www.hhs.gov/ash/initiatives/hai/tier2_flu.html and related pages on the HHS website. Additional government information and advice for employers, updated on a continuing basis given the assessment of risk at a given time, can be obtained at www.pandemicflu.gov.

Pregnancy

Finally, you asked whether hospitals must accommodate a pregnant employee's request to refuse vaccines during her pregnancy. We are not aware of any policy guidance or case law directly addressing whether or how Title VII might apply. In general, the Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination. The outcome of such a claim would obviously turn on the facts of the particular case. Cf. Armstrong v. Flowers Hospital, Inc., 33 F.3d 1308 (11th Cir. 1994) (affirming summary judgment for employer on claims by pregnant nurse that she was subjected to disparate treatment or disparate impact in violation of the PDA when the employer denied her request to be excused during pregnancy from treating patients with AIDS; accommodation sought would have amounted to preferential treatment because no comparable employees were excused from the requirement to treat all patients).

Additionally, although you have confined your inquiry to Title VII, we note that impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA), as amended. An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense under the ADA). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. For more information about the ADA, see http://www.eeoc.gov/laws/types/disability.cfm. For information about the ADA Amendments Act of 2008, and the EEOC's implementing regulations, see http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.

I hope this information is helpful. This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

This page was last modified on April 6, 2012.