The U.S. Equal Employment Opportunity Commission

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: VACCINATION POLICIES AND REASONABLE ACCOMMODATION

December 5, 2012

[address]

Dear____:

Your letter to the Chair of the Equal Employment Opportunity Commission has been referred to me for reply. You have inquired about the legality of a mandatory flu vaccination policy implemented by your employer, ____, from which you have sought to be excused as a religious accommodation. A general discussion of the issues raised by your correspondence appears below, and should not be construed as a legal review of any potential claim you might file. If your employer takes an action that you seek to challenge under the federal EEO laws, you should file a charge of discrimination for investigation with an EEOC field office, and a factual determination based on the particular circumstances of your allegations and the employer’s defenses would be made.

The potential applicability of the EEO laws to mandatory employer vaccination policies has been discussed in two recent informal discussion letters by this office, dated March 5, 2012 and November 2, 2012, copies of which are enclosed and which can be viewed on our website at http://www.eeoc.gov/eeoc/foia/letters/. Please refer to that correspondence for a detailed discussion of potentially relevant legal issues. In summary, if it would not pose an undue hardship, an employer may be required to excuse an individual from a mandatory vaccination policy as a requested religious accommodation under Title VII or disability accommodation under the ADA. Where a religious accommodation is requested, the employer is permitted to obtain supporting information. “[S]ince 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 belief or practice.” EEOC Compliance Manual Section 12: Religious Discrimination (2008), www.eeoc.gov/policy/docs/religion.html.  Where the employer makes reasonable inquiries for such supporting information, the employee must cooperate or he may not be entitled to accommodation. Id. Moreover, even if the employee provides such information, the employer may deny the accommodation request if it would pose an undue hardship in the circumstances, or may impose other infection control measures on those excused from vaccination, such as a mask requirement, if not done for retaliatory or discriminatory reasons.

While the policy you have forwarded has a space provided for clergy verification, the employer’s letter to you following your accommodation request offers you an opportunity to meet with the decisionmaker to explain your individual request, and states that the requested information need not come from a clergy member or congregant, but rather simply from “a person who can attest that your religious beliefs are sincerely held and do not permit you to receive the influenza vaccine.”  To the extent you have enclosed a letter from an attorney with your inquiry that questions the potential constitutionality of an employer’s scrutiny of whether an asserted religious belief is sincerely held, we note that Title VII case law has permitted appropriate employer as well as judicial inquiry into these issues. See Compliance Manual at pages 12-14, 48-51; Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076-78 (N.D. Ind. 2001) (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”). See also EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 56 (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); 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); 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. 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); 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).

As noted above, this has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in the various attachments to your letter should not be construed as agreement with those matters.

I hope this information is helpful.

Sincerely,

Peggy R. Mastroianni
Legal Counsel

 


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