Understaffed hospitals that don’t want to lose employees to the Biden administration’s Covid-19 vaccine mandate have an out. They can freely accept religious exemption requests, no matter their validity, and still be compliant in the eyes of the Centers for Medicare & Medicaid Services, several labor and employment lawyers said.
Regulating religious exemptions gives health-care employers power to enact policies that balance concerns about litigation, safety, and workforce shortages as facilities enter a third year of unpredictable staffing and budget woes.
“None of these decisions are made in a vacuum or looking at just one form of risk,” said Caroline Park, a partner at Wiggin and Dana LLP.
Health-care facilities across the U.S. are subject to the vaccine mandate after months of litigation that kept employers and health-care workers on their toes. Several lawsuits contested the mandates for the impact they would have on the already-drained workforce, particularly in rural areas.
While the CMS vaccine mandate is strict, requiring 100% staff vaccination rates for full compliance, hospitals are not asked to report how many religious exemptions they grant. When hospitals are audited, “surveyors will not evaluate the details of the request for a religious exemption, nor the rationale for the hospital’s acceptance or denial of the request,” the CMS said.
“The bar for establishing a sincerely held religious belief is quite a low one,” said Sonya Rosenberg, a partner at Neal, Gerber & Eisenberg. Employees just need to prove that their opposition to the vaccine is religious in nature, as opposed to political or personal.
But a precedent set by a 1977 Supreme Court decision also gives employers discretion to deny requests if they pose an undue burden on their business.
This means employers “can move everywhere from granting no religious exemptions to being very flexible and open to all religious exemptions,” based on their priorities, said Lawrence Gostin, a professor of health and constitutional law and director of Georgetown University’s O’Neill Institute for National and Global Health Law.
Religious beliefs are hard for businesses to evaluate because “you can’t get in somebody’s head,” said Julia Zuckerman, vice president in the compliance practice at Segal, an HR and benefits consulting firm.
“You can establish a process that’s universally applied and fairly communicated,” which the CMS would check during an audit, Zuckerman said. Some businesses may inquire into an employee’s religious background or previous vaccination history.
Others may accept a signed self attestation. Florida, for example, offers employers a model form that doesn’t probe employees.
Health-care facilities do need to be careful to comply with Title VII of the Civil Rights Act of 1964, which bars them from discriminating against employees based on religion. They should avoid overly invasive questions because “you don’t want to have an employee feel like they’re being asked to jump through hoops” for requesting a religious exemption, said Deepa Menon, an associate at Eversheds Sutherland LLP.
The best way to avoid Title VII litigation risk is to be overly generous doling out exemptions, Park said.
Some hospitals have chosen that strategy to ameliorate staffing concerns, which have been a significant strain on the industry. Midland Health, a hospital in Texas, received 209 religious exemption requests and granted 207 of them, said Public Relations Manager Tasa Richardson.
The CMS is likely to be understanding of facilities “where there happen to be a lot of people with sincerely held religious beliefs against vaccination,” Zuckerman said.
But exemptions shouldn’t be provided for a staff member “who requests an exemption solely to evade vaccination,” a CMS spokesperson said.
The health-care setting is different from other workplaces because the CMS is bound by a duty to regulate the health and safety of the facilities it funds to protect patients. That’s partly why the Supreme Court allowed the health-care worker vaccine mandate to take effect, but blocked a mandate for larger businesses.
“One of the touchstones of the Supreme Court ideologically is religion,” and “there’s a determined five-member majority of the court” that might “preference religion over public health,” Gostin said.
Employers have quite a bit of flexibility to deny religious exemptions. Hospitals treat sick patients, so it’s an easy argument to claim that unvaccinated staff would be a threat to health and safety and a hardship on the business, said Benjamin Fenton, a partner at Fenton Law Group LLP.
Accommodations such as regular testing or shifting to remote work may not be possible or practical in the health-care industry. Hospitals could also raise concerns about unvaccinated employees requiring longer quarantine and isolation periods, Park said.
Still, health-care facilities may choose not to be overly strict. “Employers tend to work it out,” Zuckerman said. “There’s a labor shortage and employers are not in the business of wanting to deny religious exemptions so much as wanting to ensure that they have a workforce.”