The Covid-19 vaccine mandate for health-care workers could spark an uptick in litigation challenging the denial of medical and religious exemptions to the controversial rule.
The interim regulation from the Centers for Medicare & Medicaid Services requires more than 17 million employees to be fully vaccinated by Jan. 4, 2022. But it also allows workers to forgo the shots if they have valid religious objections or medical reasons.
A federal court in Missouri on Nov. 29 blocked the Biden administration from enforcing the vaccine mandate for health-care workers in 10 states. The preliminary injunction by the U.S. District Court for the Eastern District of Missouri marks the first victory for opponents of the mandate.
It’s up to employers to determine the validity of workers’ requests for an exemption, and denials have historically been fertile ground for legal challenges.
“Employment is a very active area for litigation. And whenever there is a new set of regulations and compliance requirements, additional litigation is a possibility. This is also a hotly debated public issue, which is another reason that litigation could result from employers’ decisions,” said
Get Ready Now
As health-care employers develop plans and processes to evaluate exemption requests—and to accommodate workers who receive them—attorneys say they should start working toward compliance now. That means updating procedures, training HR staff on required documentation, and consulting legal counsel, said Delphine O’Rourke, a partner at Goodwin Procter LLP in New York.
While the high cost of pursuing federal lawsuits will likely deter individuals from challenging denied exemption requests on their own behalf, O’Rourke said she expects an increase in legal challenges “by interest groups, by states, and by individuals who are being supported with the goal of getting rid of the laws altogether. There will be folks who will bring lawsuits to make a point, to advance an agenda.”
For example, the Thomas More Society, a nonprofit law firm that specializes in religious freedom cases, is representing a San Diego high school student in a federal lawsuit against the local school board. The suit claims the district’s Covid-19 vaccine mandate for students constitutes religious discrimination.
Health-care providers may be better positioned to handle requests for religious and medical exceptions than non-health-care companies because of their familiarity with the issue, O’Rourke said.
A former hospital general counsel, O’Rourke said each year her facility had to work through requests for religious and medical exceptions to mandatory flu vaccinations. Extending the same process or adapting it to the Covid vaccine mandate shouldn’t be a heavy lift, she said. “This is a concept that’s familiar, a process that’s familiar in the health-care setting,” she said.
Hudson agreed. “The exemption requirements are consistent with what the law has been for decades and there is substantial guidance on how to comply,” she said.
Receiving an exemption on religious and medical grounds isn’t easy and most requests are typically denied. “It’s very rarely authentic and legitimate for somebody to claim an exemption,” said Lawrence Gostin, a public health and law professor at Georgetown University. Sometimes people claim a medical exemption first, Gostin added, and if that doesn’t work, they apply for a religious exemption.
Or vice versa. When eight employees at Mass General Brigham health-care system in Boston were denied religious exemptions to the hospital’s Covid vaccine mandate, four sought individual medical exemptions, which the hospital also denied.
The employees then sued the health-care system under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act, arguing that the hospital acted unlawfully in denying the exemptions. But the U.S. Court of Appeals for the First Circuit on Nov. 18 denied their motion for a preliminary injunction, which would have required their return to work pending their appeal. The U.S. Supreme Court on Nov. 29 also denied the workers’ request to block the hospital system’s mandate.
The workers had sought an emergency injunction from Justice
One of the workers has since resigned, one got vaccinated, and six others were terminated, according to court filings. The hospital system has, thus far, granted religious or medical exemptions to its vaccine mandate to at least 234 employees.
The CMS vaccine mandate requires that medical exemption requests include information specifying why the Covid-19 vaccines are “contraindicated,” or increase a person’s risk for harm or a serious adverse reaction. The CMS considers a severe allergic reaction after a previous Covid vaccine dose, and an allergy to a component of the Covid-19 vaccine, to be contraindications recognized by the CDC that would justify an exemption request.
The CDC also recommends that a person delay vaccination for 90 days after receiving Covid-19 monoclonal antibodies. None of the appellants in the Mass General suit said they had a CDC-recognized contraindication.
Documentation Is Key
“Under CMS rules, facilities must ensure there is documentation confirming recognized clinical contraindications to Covid-19 vaccines for anyone seeking medical exemptions. That documentation must be signed and dated by a licensed practitioner who is not the individual requesting the exemption and is also acting within the scope of their practice,” Hudson said.
Religious exemptions must also be documented and evaluated in accordance with applicable federal laws. Title VII forbids employers from discriminating against employees based on religion. That means facilities have to accommodate a belief that is “sincerely held.”
It’s a “fact intensive” process for employers to determine whether an employee’s beliefs are sincerely held, “and requires essentially a review of what is heartfelt by the individual,” said Domenique Camacho Moran, a partner at Farrell Fritz who represents employers on labor matters.
The U.S. Equal Employment Opportunity Commission on Oct. 25 updated its guidance on providing accommodations for religious objections, providing “specifically that things like social, political, personal preferences or non-religious concerns about the possible effects of the vaccine don’t qualify as religious beliefs,” Hudson said.
Guidance on Religious Beliefs
The EEOC also provided additional guidance on how employers should approach requests for religious exemptions based on “sincerely held religious beliefs.” “So there’s fairly robust guidance from the EEOC on that particular issue,” Hudson added.
Employees don’t necessarily have to tie their belief to an organized religion, said Lindsay Wiley, a public health law professor at American University Washington College of Law. But they do have to show that it’s religious. Courts have sometimes sided with employers who claim that beliefs like, “‘I just don’t think vaccines work,’ or ‘I think vaccines are dangerous,’ or ‘I don’t think vaccines are natural and I prefer a natural lifestyle’” aren’t religious in nature, Wiley said.
Current law tends to favor employers when it comes to accommodating employees with valid religious objections, as U.S. Supreme Court precedent allows employers to reject those accommodation requests if they pose more than a minimal burden on their operations.
For workers that are granted exemptions, employers would have strong authority to deny accommodations for workers in patient-facing roles, given that many of the people they treat could be at higher risk of contracting the coronavirus, said Devjani Mishra, a shareholder at Littler Mendelson P.C. who leads the firm’s Covid-19 task force.
The EEOC also recently announced that employers can consider the cumulative burden of granting all employees exemptions.
“It’s one thing if you have one person out of a hundred who needs an accommodation, and maybe that accommodation involves changing their job assignment away from vulnerable patients,” said Mishra. “It’s another thing if you’re talking about 30% of employees in a department or facility.”
O’Rourke said employers should be already anticipating and preparing for workplace challenges related to the new mandate.
“But do not wait until early December to get this going because we anticipate that providers are going to be audited very quickly,” on compliance, she said.