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Courts Clash Over Religious Exemptions for Vaccine Mandates

Oct. 19, 2021, 9:36 AM

Conflicting court rulings about Covid-19 vaccine mandates for health-care workers in Maine and New York could lead the U.S. Supreme Court to reconsider its stance on what freedom of religion means for employees.

The two states both tried to mandate the shot for health-care workers without giving them the option to bow out due to their religious beliefs. A federal judge in Maine allowed the state to move forward without offering employees an exemption, while a district judge in New York extended an order that temporarily blocked the state from enforcing the mandate for workers with religious exemptions.

Vaccine mandates from employers and governments have been challenged in federal court almost 40 times this year, but so far, they have largely passed legal muster.

“The battleground now is the question of how broad are the exemptions going to be,” said Brian Abramson, who teaches vaccine law at Florida International University College of Law.

The Supreme Court has never addressed whether vaccine mandates have to provide religious exemptions, said Lindsay Wiley, a public health law professor at American University Washington College of Law. If the conservative court does address the question, the justices could block some mandates in one of the only places they’re legally vulnerable.

‘Complete Outlier’

State supreme courts and federal courts have typically allowed vaccine mandates without religious exemptions, but medical and religious exemptions are fairly standard for Covid-19 vaccine mandates.

The New York case is “a complete outlier,” said Lawrence Gostin, a public health and law professor at Georgetown University.

The language of the Maine and New York mandates is similar, so the different rulings stem from the judges’ different interpretations of the law, Wiley said. The sticking point is defining “what freedom of religion requires,” which is protected under the First Amendment, Wiley said.

The employees in both cases have claimed that a vaccine mandate discriminates against employees on the basis of religion because Covid-19 vaccines use fetal stem cell research.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religion, meaning they must “reasonably accommodate sincerely held religious beliefs,” said Domenique Camacho Moran, a partner at Farrell Fritz who represents employers on labor matters. Title VII also protects employees from discrimination based on race, color, sex, and national origin.

New York’s mandate “essentially made those employers say ‘we can’t do anything,’” Moran said, so the court’s decision means that employers once again need to make reasonable accommodations.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

The conflict in court ultimately hangs on whether “Title VII prevails over what a state does in its order,” Abramson said.

But even if employers must consider religious accommodations, they also have a strong legal defense under Title VII that permits them to reject those requests if they pose more than a minimal burden on business operations. The Supreme Court earlier this year declined to take up a case that could have given the justices an opportunity to weaken that defense.

Proving Sincerity

Considering religious exemptions is more difficult than considering medical exemptions because proving a sincerely held belief “means you have to try and figure out what’s in my heart,” Moran said. It’s “not an easy decision” for an employer, Moran said.

The process involves fact finding that “can be time consuming and complicated,” Moran said, so it makes sense that New York and Maine would try to avoid it. It also opens the door to future litigation if an employee challenges their employer’s decision.

Employers ask questions like “can you in your own words describe why you object to vaccines” and look at vaccination history and documentation from religious leaders, Wiley said.

Up to Supreme Court

“We have a Supreme Court that has telegraphed that it is more interested in protecting religious rights than the court may have been in the past,” Abramson said.

If the justices ruled in favor of religious exemptions, it could effect six states that have no religious exemptions for school vaccine requirements.

The impact of a shift in precedent would likely be narrow for health-care workers, who are subject to vaccination requirements without religious exemptions in medical school because they fall outside of the purview of Title VII protection, Abramson said.

There are “very creative tools that states can use to limit the damage” that would come from the court if it decided not to act in the interest of public health, Gostin said. “What states can do and should consider doing is giving extraordinarily narrow religious exemptions,” which would still be legal, but increase scrutiny for employees trying to get out of a shot.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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