Sep 24, 2021 • Richard Dahl; FINDLAW/BLOGS/LAW AND DAILY LIFE
What Are the Requirements for a Vaccine Religious Exemption?
As anti-vaxxers and COVID-19 vaccine skeptics feel economic walls closing in, some are turning to religion to avoid the jabs.
More and more employers are mandating that their employees get a COVID-19 vaccination if they want to keep their jobs. But there seems to be greater awareness among the unvaccinated that claiming a “religious exemption” may provide a legal pathway for them to avoid the jab.
That phrase refers to language in Title VII of the federal Civil Rights Act of 1964. A section of that law mandates that employers must make “reasonable accommodations” for an employee’s “sincerely held” religious beliefs if doing so does not impose “undue hardship” on the employer.
You might imagine that “undue hardship” is the kind of imprecise phrase that could spark a legal dispute. But what about “sincerely held” religious beliefs? How sincere must they be? Where is the line between sincere and insincere?
What the Law Says
For starters, the U.S. Equal Employment Opportunity Commission (EEOC) says that employers generally should assume that a request for a religious exemption is sincere, regardless of how untraditional the religion may be or appear to be. The EEOC also says that an employee seeking an exemption does not need to show that they are scrupulous in their observance.
However, EEOC suggests that if an employer wants to push the matter, “evidence tending to show that an employee acted in a manner inconsistent with his professed religious beliefs is, of course, relevant to the factfinder’s evaluation of sincerity.”
In addition to the question of inconsistent behavior, the EEOC identifies three other factors that could undermine the credibility of an employee seeking a religious exemption:
- Whether the accommodation would produce a particularly desirable benefit that is likely sought for secular reasons.
- Whether the timing of the request is suspect.
- Whether the employer has reason to believe that the accommodation is not sought for religious reasons.
Why Some Christians Oppose Vaccinations
The Christian arguments for opposing COVID-19 vaccinations are generally twofold:
First is the connection between vaccines and abortion. The vaccines do not contain fetal cells, but at various stages of vaccine development and manufacturing, some of the vaccines used fetal tissue, some of which were derived from an aborted fetus. This is a sensitive and complicated issue, and the Los Angeles County Department of Public Health has a thorough description of it here.
Second, Biblical verses are believed to be relevant to vaccinations, such as 1 Corinthians 6:19: “Or do you not know that your body is a temple of the Holy Spirit within you, whom you have from God? You are not your own.”
Downloadable Boilerplate Exemption Letters
Some pastors and churches are providing form letters for parishioners – or anyone – to use in requesting an exemption to COVID-19 vaccinations.
San Diego megachurch pastor Greg Fairrington, for example, is offering them to anyone who pledges on an online application form that they are “a born again Christian who believes in the validity of Scripture.”
But there are others that appear more opportunistic than sincere.
Oklahoma pastor Jackson Lahmeyer, a Republican who is also running for Senate, is encouraging people to donate to his Tulsa church to get a letter to avoid vaccination mandates. The form letters are available for free on his church and campaign websites, but Lahmeyer said that for those letters to have “any weight,” people need to become online members of the church and donate at least $1.
Texas evangelist Anita Martir Rivera also offers them, asking for $25 “donations.”
Mat Staver, founder and chair of Liberty Counsel, a conservative Christian legal organization, told the New York Times that his group received more than 20,000 queries on religious exemption in recent weeks. The Times also reported that large public employers have been dealing with surges in requests for religious exemptions—in Tucson, Ariz., 291 workers issues requests after the city mandated vaccinations for its employees.
While many Evangelical churches oppose COVID-19 vaccinations, no major religious denominations do. This includes the Catholic Church, which has determined that it is “morally acceptable” for Catholics to be vaccinated despite the vaccines’ reliance on fetal cell lines.
In issuing that determination, the Vatican’s Congregation for the Doctrine of the Faith said that for Catholics the decision must be based on personal conscience, and many have said their choice is to seek a religious exemption. The National Catholic Bioethics Center reports that as the mandates have increased, there has been a parallel increase in interest in a vaccination exemption template letter it has made available since July 2.
Tough Decisions for Employers
So, what does this mean for employers? At the same time, they want to avoid workplace disputes (and potential lawsuits) over reasonable accommodations, they also want to keep their workplaces as safe as possible by not allowing unvaccinated employees to work alongside vaccinated ones.
In many cases, it means they may be forced to determine whether requests are sincere or whether they are an excuse.
If an employee requests an exemption from COVID-19 vaccinations based on a medical need, the employer’s next available step is clear: Request documentation from a medical provider.
But lawyers say that when it comes to religious exemption requests, the next step is not as clear.
“Employers still need to engage in the interactive process to determine what the practice entails and if someone else’s belief is sincere or not,” Sadie Banks, assistant general counsel at Engage PEO, a human resources and benefits provider, told CBS News. “But I cannot tell you that what you sincerely hold as a religious belief does not exist, so that’s a potential challenge.”
Jason Reisman, co-chair of the labor and employment practice group at the law firm Blank Rome, told CBS that he’s seeing employers becoming more assertive in asking probing questions of the requesters.
“They are becoming more brazen about asking for supporting information, like a note from a religious leader,” he said.
Carrie Hoffman, a labor attorney with Foley & Gardner told CBS News that simply saying, “I believe in God, I can’t get vaccinated,” is not enough. “There has got to be some kind of explanation that’s better than that.”