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Can Workers Reject the J&J Shot? Religious Objections Explained

March 10, 2021, 3:30 PM

Johnson & Johnson’s use of fetal cells to make its Covid-19 vaccine recently drew concerns from some Catholic leaders that could spark resistance among the faithful to taking the shot.

The Catholic Church is staunchly opposed to abortion, and the cloned cells used in the J&J vaccine were derived from a fetus that was aborted in the 1980s. The U.S. Council of Bishops last week recommended avoiding the J&J vaccine if possible, while the Vatican said it’s “morally acceptable” to take vaccines that used fetal cell lines in their research and production process.

But a few church leaders have voiced stronger opposition. The Archdiocese of New Orleans, for instance, called the J&J vaccine “morally compromised.”

1. Can workers refuse the J&J vaccine on religious grounds?

Yes. Employers generally have the legal power to require workers in the private sector to get vaccinated and such mandates are common for some health-care workers. But companies must listen if a worker raises a religious objection.

Title VII of the 1964 Civil Rights Act gave workers the right to seek an exception to a vaccination mandate based on their religious beliefs. The Equal Employment Opportunity Commission, which enforces Title VII, defines religion beyond membership in a church or belief in God, to include firmly and sincerely held moral or ethical beliefs.

Courts analyze religious beliefs under Title VII by examining both their substance and whether they’re sincerely held. Religions associated with distrust in modern medicine include Christian Science, some Pentecostal Christian sects, and some ultra-Orthodox Jewish sects.

2. For Catholic workers, what if church leaders only recommended avoiding the vaccine?

The EEOC directs employers to take their workers’ faith claims at face value because Title VII’s broad definition of religion protects beliefs and practices that employers might not understand. Companies can ask for more information if they have an “objective basis” for questioning a faith claim, the agency said.

The U.S. Supreme Court said that judges shouldn’t “dissect” a worker’s religious beliefs in a 1981 decision granting unemployment benefits to a Jehovah’s Witness who quit his job due to his church’s tenets. Although the high court’s ruling dealt with the First Amendment rather than Title VII, it signaled that the judiciary generally should defer to faith claims.

The Catholic Church’s abortion-based objection to medical research that uses human embryos was set forth in a Vatican directive in 1987. How an individual Catholic personally interprets that well-established concern related to the medical use of fetal cells likely isn’t the sort of issue an employer should question.

3. Can employers refuse accommodating workers who object on religious grounds?

Companies have a strong legal defense thanks to a Supreme Court ruling that permits businesses to reject requests for religious accommodations if they’re too burdensome.

Employers need only show that the requested accommodation would cause more than a trivial cost to their operations, under a high court decision from 1977. That “undue hardship” standard has been criticized as too low by academics, religious groups, the U.S. Justice Department, and some federal judges.

The Supreme Court has pending requests to revisit its standard for what qualifies as an undue burden to a worker’s bid for a religious accommodation. But even if it takes up the issue and raises the bar for what’s considered too burdensome, that may not be enough to significantly change the legal calculus for workers trying to avoid vaccination based on religious reasons.

4. Is waiting for workers to take other vaccines an undue burden?

It likely depends on the availability of the Moderna or Pfizer vaccines. An employer would have a stronger argument that it’s an undue burden to wait a month for a worker to get jabbed with a religiously acceptable vaccine than if the wait only took a day.

The Moderna and Pfizer vaccines, which were tested on cloned fetal cells, haven’t generated the same level of opposition from Catholic leaders. Pope Francis was vaccinated and has suggested people have a moral obligation to get inoculated against Covid-19 as soon as they can.

States are expected to get a boost in shipments of Moderna and Pfizer vaccines this week, building on an initial burst of the J&J shot after it was authorized. AstraZeneca is stockpiling its Covid-19 vaccine, which could raise vaccine availability should the company win regulatory authorization.

To learn more:

— From Bloomberg Law

Can Your Boss Force Your Vaccination? Employer Mandates Explained

Religious Vaccine Objections to Clash With Employer Defense

Covid-19 Vaccine Mandates at Work Promise Employer Headaches

Workers’ Compensation Can Soothe Some Covid Vaccine Fears

Emergency Virus Vaccine Approval Adds More Risk to Job Mandates

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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