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Religious Vaccine Objections to Clash With Employer Defense

Dec. 28, 2020, 10:30 AM

Workers seeking religious exemptions from Covid-19 vaccine mandates must overcome the U.S. Supreme Court’s employer-friendly precedent that allows businesses to reject those requests if they’re too burdensome.

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

The high court has pending petitions asking it to revisit its standard for determining if a religious accommodation is an undue burden. 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.

“The employer has a strong need to protect his workers and his customers, and to assure his customers that his place of business is safe,” said Douglas Laycock, a law professor at the University of Virginia who’s written extensively about religious freedom.

The U.S. Food and Drug Administration has cleared for emergency use two Covid-19 vaccines, with first priority going to the 21 million health-care workers in hospitals, home health care, and other high-risk settings. Those in the meatpacking industry should be next in line, the U.S. Centers for Disease Control said last week.

Employers generally have the legal power to require nonunion workers in the private sector to get vaccinated, and such mandates for a range of infectious diseases are common in some sectors of the health-care industry. The scope of the coronavirus pandemic may motivate companies in other industries to adopt mandates, particularly if their employees work in close quarters or in frequent contact with the public.

But legal complications—including the need to consider religious objections—can make encouraging and facilitating worker vaccination a better option for businesses than requiring it.

‘A Fair Amount of Litigation’

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.

There will be a “fair amount of litigation” over the issue, predicted Steven Green, law professor and director of Willamette University’s Center for Religion, Law and Democracy. He cited, as an example, the conservative religious groups that have gone to court to challenge pandemic-related limitations on houses of worship.

Courts analyze religious beliefs under Title VII in two parts, examining both their substance and whether they’re sincerely held, legal scholars said.

While courts have been reluctant to probe deeply into the sincerity of beliefs, they sometimes look into the substance when there’s evidence that a person may have another reason to seek a religious accommodation, said Nathan Chapman, a law professor at the University of Georgia.

Recently, courts have been more stringent when looking at claims that people used cannabis as part of their religion, said Chapman, who’s written about religious accommodation cases. But there’s not a touchstone decision or a deep body of rulings that directs judicial review of people’s beliefs under Title VII, he said.

“Most people don’t make up phony religious beliefs to get out of work requirements,” Chapman said.

Religions associated with distrust in modern medicine include Christian Science, some Pentecostal Christian sects, and some Ultra-Orthodox Jewish sects, scholars said. There may be other belief systems, such as a focus on clean living and keeping the body free of chemicals, that might prompt a worker to seek a religious accommodation.

How Heavy the Burden?

Nevertheless, most requests to skip a Covid-19 vaccine that go to court will turn on whether courts consider that accommodation an undue hardship, said legal scholars.

Laycock of the University of Virginia said workers will have a hard time winning in light of the Supreme Court’s Hardison decision. Workers will argue their employer’s staff is different than the population at large, or in some cases that they have little contact with either customers or coworkers, he said.

“I don’t think those arguments are likely to go anywhere,” Laycock said.

Employers’ undue hardship defense will be stronger in some industries, said Frank Ravitch, a professor of law and religion at Michigan State University. If the company is a manufacturer, for example, then having one unvaccinated worker could threaten the entire line, he said.

The rate that the public gets vaccinated may also impact how courts analyze the issue, Ravitch said. For example, it may not be an undue hardship to let one worker avoid the shot when 75 percent of the population has already taken it, he said.

An option for some workers could be suing under a state anti-bias law with a higher bar for undue hardship than federal law, such as New Jersey’s statute, said Dori Goldstein, an employment law analyst at Bloomberg Law.

But Green, the Willamette University professor, said religious workers may have a good chance at prevailing on Title VII accommodation claims related to employer vaccine mandates.

If a company was operating with masks and social distancing before the vaccine became available, then it would be difficult for it to prove that letting a religious worker avoid a shot is too burdensome, Green said.

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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