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Biden Shot-or-Test Mandate Collides with Faith-Based Objections

Nov. 17, 2021, 1:36 AMUpdated: Nov. 17, 2021, 1:43 AM

Christian schools, churches, and seminaries contend OSHA’s Covid-19 vaccine mandate clashes with their constitutionally protected religious freedom, setting up a legal contest that pits the power of the federal government to act in a public health crisis against sectarian rights.

Religious institutions have filed at least four lawsuits seeking to bar enforcement of the Occupational Safety and Health Administration’s emergency standard requiring U.S. employers with 100 or more workers to ensure that all members of their workforce are fully vaccinated or tested at least weekly, starting Jan. 4.

The institutions maintain the federal mandate, which contained no faith-based carve-out, forces religious employers to violate their sincerely held religious beliefs. The cases are pending at the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit and elsewhere.

“The biggest frustration our clients have is that they themselves can’t be the ones to violate their employees’ deeply held religious beliefs,” said Jeremy Dys, special counsel for litigation and communications at the First Liberty Institute, which is litigating several challenges to the emergency rule. “They’re stuck in the middle position between the proverbial rock and the hard place: The conscience of the employees on one side and the government on the other side.”

Business groups and coalitions of states have also challenged the regulation on secular grounds, arguing the Biden administration’s move amounts to federal overreach. The U.S. Court of Appeals for the Sixth Circuit was chosen in a lottery Tuesday to hear the consolidated challenges after roughly 30 lawsuits were filed in appellate courts across the country, including in the Fifth Circuit, which put the measure on hold earlier this month.

The religious institutions’ lawsuits touch on tensions erupting across the country as more companies have required vaccination and been inundated with worker requests for exemptions. At the aerospace manufacturer The Boeing Co., more than 11,000 workers have requested an exemption from a vaccine mandate for federal contractors.

Religious Rights

The religious employers are pushing constitutional arguments about the clash of federal power against church autonomy, and they are arguing that this is distinct from individual religious exemption requests for sincerely held beliefs.

“We’re not making the case in any of our litigation that vaccines are somehow wrong,” said Ryan Bangert, senior counsel and vice president of legal strategy at the Alliance Defending Freedom. “We are objecting to the role of the federal government to force their employees to get the vaccine.”

The nonprofit alliance filed lawsuits challenging the OSHA order in the Sixth, Eighth and Eleventh Circuits. The First Liberty Institute also filed challenges on behalf of religious employers at the Sixth and the Fifth Circuits.

In addition to the federal overreach argument, the lawsuits contend that the mandate forces employers to compel workers who refuse vaccination to be treated differently or worse than their colleagues by requiring onerous, costly testing and mask use, which amounts to a “penalty on religious exercise,” Bangert said.

“Institutions have free exercise rights, as well,” he said. “They have commitments to honor the conscience of their employees and to treat their employees fairly.”

Dys said the costs of testing and masking for unvaccinated workers penalize religious employers, and isn’t a viable alternative to inoculation. The rule allows employers to pass along costs for testing to workers who refuse vaccination.

“When does this end?” he asked. “Until January? Until Christ returns? Employees will eventually be bothered by endlessly sticking swabs up their noses.”

Church Autonomy

The “doctrine of church autonomy” is the idea that religious entities have the ability to determine their own religious values, said Frank Ravitch, a professor at Michigan State University College of Law, who specializes in law and religion.

This has been a powerful argument in many past instances, including arguments for the ministerial exception, which means that certain religious employees shouldn’t be subject to federal anti-discrimination laws.

“It’s an excellent question and a complex one,” he said. “Religious entities are a bit different than individual requests because church autonomy can come into play. The nexus of political and religion with social conservatives has become blurred.”

Ravitch said he was skeptical the argument could be successfully used to block the OSHA mandate, however. The institutions would have to prove that testing and masking also violated sincerely held religious beliefs, he said.

“In this context it’s a bit weaker because it’s not at all clear giving employers the option of imposing the vaccine or regularly testing or masking will violate any church autonomy, and it is treating religious entities the same as all other entities,” Ravitch said.

He said individual requests for religious exemptions are distinct from institutional ones. But analogies to OSHA’s response to the public health crisis would be churches arguing that they shouldn’t be held to federal rules making them liable for clergy abuse or religious groups arguing they shouldn’t be required to follow environmental pollution rules.

“Religious doctrine is not a free pass to do whatever you want,” he said.

Religious Exemptions

There have been challenges from religious groups to state mandates and from individuals in recent months as well. Earlier this month, the high court refused to force Maine to add a religious carve-out to its vaccination mandate for health-care workers. Similarly, the New York-based Second Circuit on Oct. 29 lifted a lower-court stay in a religious challenge to that state’s health-care workers’ shot mandate.

A Texas federal judge partly granted workers’ motion for a temporary court order blocking a United Airlines Inc. mandate and later ordered the parties to talk it out. The workers in that case argued that the mandate to get vaccinated or take unpaid leave violated their rights.

Employers can require vaccinations, but they must consider accommodation requests from workers with disabilities or sincerely held religious beliefs.

A 1977 U.S. Supreme Court ruling requires businesses to prove only that a religious accommodation causes a trivial interference with their operations. That ruling created a difficult precedent for religious employees arguing over dress codes, facial hair, and Sabbath requests in federal courts in recent years.

If an employer adopts a mandatory vaccination policy, it needs a process in place for legally protected accommodations, said Mark Goldstein, a labor employment partner at Reed Smith LLP. He said the employer needs objective grounds to challenge the sincerity of a religious belief.

Proving undue hardship for religious requests is more difficult than disability-related requests. Religious requests used to be rare, compared to disability requests, Goldstein said.

“There have been some questions about the sincerity of some workers’ professed beliefs,” he said. “The threshold question of sincerity has become front and center. The script has flipped, and it’s the religious accommodation that has become so hot-button.”

The intersection of cultural and social issues over the last two years has raised unprecedented questions about workplace culture, said Melissa Peters, who is of counsel to Littler Mendelson and specializes in workplace safety.

“Religious requests are being pitted against workplace safety. This has been a first,” Peters said. “There has been a huge spike in these requests, where it’s almost debilitating for certain employers to process it.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com