Legal Blog

EEOC Provides More Info as Federal Vaccine Mandate Approaches

On October 13, 2021, the EEOC updated its FAQ: What You Should Know About COVID-19, the ADA, and the Rehabilitation Act and Other EEO Laws. As previously discussed, OSHA is expected to promulgate the emergency temporary standards relating to the vaccine/testing requirements for employers with more than 100 employees.

This blog focuses on the updates relating to disability and religious exemptions, and the “undue hardship” threshold for each exemption.

First, the EEOC reiterates that employers can require all employees entering the workplace to be vaccinated, subject to disability and religious exemptions. As we know, employers have a duty to accommodate such exemption requests so long as it does not pose an “undue hardship” on the employer.

This is where it gets a hint tricky…

An “undue hardship” when dealing with a religious exemption, is different than an “undue hardship” for an exemption based on a disability. Employers must be aware of the different standards when faced with such exemption requests. Let’s look at each “hardship.”


Let’s start with the more stringent standard- the higher threshold. When faced with a request for an accommodation based on a disability, the employer must engage in the interactive process and accommodate, unless the accommodation would pose an undue hardship on the business. The ADA is clear that an undue hardship means, “an action requiring significant difficulty or expense.” The following factors are considered in determining whether an accommodation would impose an undue hardship for a disability accommodation:

  • The nature and cost of the accommodation needed, taking into consideration tax deductions/credits and outside funding;
  • the overall financial resources of the facility involved in the provision of the reasonable accommodation, the number of people employed; the effect on expenses and resources, or the impact otherwise of such accommodation upon operation of the facility;
  • the overall financial resources of the covered entity- the size of the business (ie- the number of employees, the number of facilities, the types of facilities, the location of the facilities);
  • the type of operation or operations of the business (ie- composition, structure, functions of such entity, geographic separateness, administrative, fiscal relationship of the facility(ies) in question).

As you can see, this is a fairly high standard, especially when compared to the threshold for a religious accommodation.


Unlike the above standard, the “undue hardship” standard is lower. The US Supreme Court explained in Trans World Airlines v. Hardison that an accommodation for a sincerely held religious belief or practice is an undue hardship if it would impose more than a de minimus cost. Employers should consult with counsel to evaluate what is a “de minimus” cost. In addition to monetary cost, the direct threat to the health and safety of the business is also a factor.


It is crucial for employers to bear in mind the different “undue hardship” standards. When faced with requests for exemptions from the vaccine, employers must employ the appropriate undue burden threshold when assessing whether they can accommodate the request without an undue hardship. This means that two employees holding the same position could have two different results when submitting a vaccine exemption request.


  • Employee D and Employee R hold the same position at a company.
  • Employee D requests an exemption based on a disability.
  • Employee R requests an accommodation based on a religious exemption.
  • The Company’s assessment as to whether it can accommodate both requests could result in two different results.
  • In other words, if accommodating Employee R (religious exemption) would result in more than a de-minimus cost and/or a direct threat to the workplace, then the company does not need to accommodate Employee R.
  • At the same time, if the company is able to accommodate Employee D, without it being an undue hardship under the more stringent disability “undue hardship” threshold, then the company must accommodate the disability exemption.
  • So, two employees in the same position could each submit a request and one could be granted (disability), while the other one (religious) is not.

BOTTOM LINE: There could be a scenario where a religious exemption request is not granted due to the lower undue hardship threshold, while at the same time, the disability exemption request is granted due to the higher undue hardship threshold.

Employers should consult with counsel with any questions as they relate to vaccination exemption issues. | 267.338.1395

Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.







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