Broad vaccine mandates by federal and state governments, large employers, and the health care industry have led to vigorous opposition from some employees claiming a sincerely held religious belief justifies exempting them from any vaccine requirement. A cottage industry has emerged in the form of religious leaders providing written support for the exemption, often for a fee. Employers are therefore required, in a manner never experienced, to determine if an employee’s request for exemption from a vaccine mandate based on religious belief can be accommodated, and if so, how?
The History of The Religious Exemption
The religious exemption emanates from both the US and State Constitutions (sanctifying the freedom of religion) when the mandate is imposed by a government entity, or from Title VII of the Civil Rights Act of 1964, as well as similar state and local laws, when the mandate is imposed by a private employer. These laws fully respect the freedom of religious faith, and require employers to accommodate these beliefs and practices, unless doing so would create an undue burden on the employer. As applied to vaccine mandates, consensus is beginning to emerge about the extent to which a claimed religious exemption must be accepted, and the nature of the accommodation an employer must provide if an employee refuses to be vaccinated on this basis.
Some Religious Exemptions Can Be Rejected
First, it is clear that a claimed religious exemption based on nothing more than “God will protect me” or similar rationale or claiming a religious basis for what essentially includes unsubstantiated doubts about the vaccine efficacy or lack of proper testing of the vaccines, can be rejected. Second, while no major religion has publicly announced any opposition to the vaccines (indeed Pope Francis has called taking the vaccine an “act of love” and even Christian Scientist leadership had stated this is an individual decision), this doesn’t mean that an individual’s religious faith cannot provide a basis for vaccine opposition.
Exemptions Must Be Based on Factual Data
Numerous individuals with deep religious faith claim that the vaccines were either developed using or contain fetal tissue or fetal cells and allowing these to be injected into their bodies violates a sincerely held religious belief. First, none of the three principle vaccines (Pfizer, Moderna, or J&J) contain any fetal cells, so this rationale, if limited in this fashion, can be rejected. Second, while the vaccines in development were tested using these cells, this is an extremely common pharmaceutical practice, used in developing scores of medications including Tylenol, Motrin, Tums, Ex-Lax, Maalox, Sudafed, Claritin, and many others. If this is the basis for vaccine opposition, an employee claiming this exemption can be asked whether they have similarly refused to take these common products. If the answer is no, the requested exemption can be rejected on this basis.
Employers Can Offer Limited Accommodations for Employees
If a claimed religious exemption is tested in this fashion and the employer determines it must be accommodated, the undue burden requirement gives very wide latitude in determining the nature of the requested accommodation. Employees permitted to retain employment while not being vaccinated can likely be placed on unpaid leave until the pandemic subsides (although there is active litigation where this is alleged to be an adverse action) and can certainly be reassigned to positions without any contact with the public and very limited contact with other employees. The employer can require frequent testing of these employees if they are permitted to work in some capacity. In other words, an employee successfully claiming a religious exemption and avoiding the vaccine does not have the right to continue employment without serious restrictions.
Navigating through these requirements for the religious exemption for employers and employees can be challenging, but some clarity is beginning to emerge. If you are an employee subject to a vaccine mandate based on a sincerely held religious belief, you should be prepared to justify this belief as described above and be willing to accept a limited accommodation if this exemption is satisfied.