key: cord-0755594-1xh18al5
authors: Rothstein, Mark A.
title: Covid Vaccine Mandates and Religious Accommodation in Employment
date: 2021-11-08
journal: Hastings Cent Rep
DOI: 10.1002/hast.1294
sha: 0845b5f7644316fd0a2c6b2cf0327cfaa7646420
doc_id: 755594
cord_uid: 1xh18al5

Many employers are requiring their employees to be vaccinated for Covid‐19 to comply with federal, state, or local laws, or to conform to employers' policies. Some employees object to vaccination on religious grounds. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on religion and requires employers to reasonably accommodate employees' religious beliefs or practices unless doing so would be an undue hardship to the employer's business. Although a religion need not be an established faith with many followers, philosophical or political objections do not count as religious beliefs. If an employee demonstrates a bona fide religious objection, the issue is whether it can be reasonably accommodated. This will depend on the employer's business, including whether close contact with coworkers or customers is required.

1 N umerous large and small employers require all their employees to be vaccinated for Covid-19 in accordance with federal, state, or local legal requirements, or simply to comply with the employer's policy. Among the federal requirements are executive orders applicable to health care employers and government contractors, as well as a pending emergency temporary standard to be promulgated by the Occupational Safety and Health Administration. Some employees have objected to Covid vaccination for various reasons, including that vaccination violates their religious beliefs. Although the law is still evolving, most employees will have a difficult time obtaining an accommodation on religious grounds.

T itle VII of the Civil Rights Act of 1964 applies to private sector and state and local government employers with fifteen or more employees, as well as to the federal government. Title VII prohibits discrimination in employment based on race, color, religion, sex, or national origin. Under Title VII, religion "includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 1 Employees challenging Covid vaccination mandates on religious grounds must first establish that their vaccine refusal is for a religious reason and not for a philosophical, political, or medical reason. The leaders of virtually all major religions in the United States endorse Covid vaccination, including Catholics, Protestants, Mormons, Buddhists, Jews, and Muslims. According to Pope Francis, receiving the vaccine was "the moral choice because it is about your life but also the lives of others." 2 The only religious denomination known to oppose Covid vaccination is the Dutch Reformed Church, whose members object on the ground that it interferes with divine providence. 3 The Christian Science religion neither endorses nor opposes Covid vaccination. 4 Under Title VII, an individual's "religion" need not be an established faith with many adherents, but it must be a bona fide faith. According to the United States Court of Appeals for the Third Circuit, a religion: (a) addresses fundamental and ultimate questions having to do with deep and imponderable matters; (b) is a comprehensive belief system; and (c) has certain formal and external signs, such as services, holidays, and clergy. 5 No single factor determines whether an employee's request for an accommodation is based on religion, and employers have some leeway in establishing procedures to evaluate employee requests for accommodation. Employers seeking to confirm an employee's religious beliefs can ask for a letter from a pastor or other external affirmation of the religion and its tenets. An employer also can ask if the employee has ever refused another vaccination or medical intervention, such as a blood transfusion, on religious grounds.

The religious objection of some employees is based on the use of fetal cell lines in developing the vaccine. The Johnson & Johnson vaccine used a replicated fetal cell line in producing its vaccine. The Pfizer-BioNTech and Moderna vaccines used replicated fetal cell lines from 1973 and 1985 to test the effectiveness of their vaccines. 6 If an employee objects to vaccination because of fetal cells, an employer might ask whether the employee also has refused to take other medications that used fetal cell lines during research and development, including acetaminophen, albuterol, aspirin, ibuprofen, Tylenol, Pepto Bismol, Tums, Lipitor, Senokot, Motrin, Maalox, Ex-Lax, Benadryl, Sudafed, Preparation H, Claritin, Prilosec, and Zoloft. 7 Assuming the employee can demonstrate that the objection is based on a sincerely held religious belief, the employee does not get "an exemption." The employee merely qualifies for a reasonable accommodation and as noted above, an accommodation is not reasonable if it results in an undue hardship to the employer's business, based on difficulty, expense, or inability to continue the enterprise without undue health risks. The next step is determining what, if any, accommodation is reasonable considering the employee's job duties.

In Trans World Airlines, Inc. v. Hardison, 8 in the context of an employee seeking to change his work schedule to accommodate his religious observance, the Supreme Court adopted a minimalist test of the employer's obli-

Covid Vaccine Mandates and Religious Accommodation in Employment by Mark A. Rothstein gation to accommodate an employee's religious observance. The Court held that requiring an employer to bear more than a de minimis cost to accommodate an employee would impose an undue hardship. Although this case has never been overruled, subsequent developments cast great doubt on its continued viability.

I n the years since the Hardison decision in 1977, both Congress and the Supreme Court have been increasingly deferential to claims of religious liberty. For example, the Religious Freedom Restoration Act of 1993 9 mandates that the constitutional test of strict scrutiny be used when determining whether the free exercise of religion clause of the First Amendment has been violated by a government action. Although the RFRA applies only to the federal government, similar laws have been adopted by twenty-one states. The RFRA provides that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability."

Recent Supreme Court decisions in Covid cases challenging public health regulations give great weight to assertions of religious liberty. For example, in Roman Catholic Diocese v. Cuomo, 10 the Court enjoined enforcement of an executive order in New York limiting attendance at religious services based on the severity of Covid in the area. The Court held that the restrictions violated the minimum requirement of neutrality to religion because it singled out houses of worship for especially harsh treatment. Similarly, in Tandon v. Newsom, 11 the Supreme Court held that California's restrictions on private gatherings contained "myriad exceptions and accommodations for secular activities comparable to religious activities."

These recent Supreme Court cases clearly suggest that more than de minimis accommodations to religion will be required under Title VII. Nevertheless, some employees will be difficult or impossible to accommodate without creating a direct threat to others. For instance, an employee with a religious objection to vaccination cannot be safely accommodated in many performing arts positions, where actors, musicians, and other performers must work in proximity without masks while singing or otherwise creating respiratory-based health risks. By contrast, an accountant might be accommodated by permitting them to work at home. Assessing whether accommodations are possible for many other positions will require a careful analysis of the employees' job duties and workplace risks.

A key unresolved question is whether frequent Covid testing is a reasonable accommodation. Once-a-week testing is sometimes used as an alternative to vaccination. Rapid antigen testing, with results in as little as fifteen minutes, identifies individuals with high viral loads and who therefore are infectious. 12 Polymerase chain reaction testing, the "gold standard" for diagnostic testing, detects even small traces of virus that are not infectious. PCR tests have a longer processing time, often two or three days, which permits transmission before a test result and thus makes it an inappropriate test for public health screening. The issue of who pays for frequent Covid testing-employer, employee, or government-has also not been resolved.

Accommodation Procedures E mployers have been assigned an important role in Covid vaccination that is complicated by employees seeking religious accommodations. Some employers might consider that determining the legitimacy of employees' religious beliefs is time consuming, unpleasant, and intrusive. Thus, they are tempted to grant all feasible accommodations without a detailed inquiry into the religious basis of the request. Such a policy, however, could result in a slew of religious claims requiring individual determinations. Employees denied an accommodation might allege that the employer's decision was arbitrary or inconsistent with the treatment of other employees.

To lessen these problems, employers could develop written or video descrip-tions of their religious accommodation process. By setting forth the legal criteria and evaluation process, employees with philosophical, political, or medical objections might forgo claiming a religious accommodation. Employers also could inform employees that requesting an accommodation based on false, misleading, or dishonest grounds will subject them to sanctions, possibly including dismissal.

Employees with honest, verifiable religious reasons for not receiving a Covid vaccination should document their religious reason and propose a reasonable accommodation. Then, applying the procedure used in accommodations under the Americans with Disabilities Act, the employer and employee should engage in a good-faith interactive process. Ideally, they will agree on an accommodation that satisfies the employee's religious concerns without imposing an undue hardship on the employer.

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