As we know, the Federal government’s efforts to ensure that its workforce is fully protected from COVID-19 have proceeded in fits and starts. On June 1, 2021 – before the Delta variant onslaught – agencies were required to provide protocols to bring their employees back to work by mid-July. On July 29, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued guidance requiring employees and on-site contractors to certify either 1) that they were vaccinated; or 2) that they were not vaccinated, in which case they would have to submit to weekly virus testing.
In light of the spread of the virus, however, on September 9, 2021, President Biden announced new rules governing federal employees: under these rules, the President declared it “necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”
The exceptions, generally recognized, are for medical or religious reasons. The CDC hasn’t identified any “specific medical condition that would definitively bar a person” from being vaccinated, but neither has it confirmed the safety of the vaccine for persons with weakened immune systems or autoimmune conditions. A person with a sound medical reason to avoid the COVID vaccines will probably be exempt. The issue here, however, is the scope of the religious exemption.
The EEOC has adopted guidance that prohibits discrimination, i.e., treating an employee differently, based upon “his or her religious beliefs.” Specifically, the guidance notes that it protects not only members of “traditional, organized religions,” for example Christians, Jews, or Muslims, but also “others who have sincerely held religious, ethical or moral beliefs.”
The scope of this protection is important because that language is commonly used to define those who can claim the religious exemption.
Indeed, on September 16, 2021, the Task Force issued clarifying guidance on the vaccine mandate, including the exemptions. According to the Task Force, “an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 … because of a sincerely held religious belief, practice, or observance.”
So, who is eligible to claim the exemption, and under what circumstances is the claim likely to be accepted? The short answer is: almost anyone can claim it, but not many will receive it.
In order to understand the principles involved, it’s important to recall the First Amendment to our Constitution, which (among other things) in 16 words pronounces that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It’s the “free exercise” and “religion” parts that are at play here (and the First Amendment now governs the States, as well as the Congress). It is well understood that none of the Bill of Rights is unlimited; they each have a point at which the “right” gives way. As we pointed out in a previous blog, in at least two earlier cases, the Supreme Court acknowledged the right to impose vaccination requirements on the general public. In the first, in 1905, the Supreme Court held that the States, acting under their police powers, could require individuals to be vaccinated against smallpox or face a fine. The other, in 1922, allowed States to require a smallpox vaccination as a condition to attend school. Confronting the argument – repeated today – that a citizen has a right to decline a vaccine, Justice Oliver Wendell Holmes countered (in the 1905 case), “[my] right to swing my fist ends where the other man’s nose begins.” As long as a century ago, the Supreme Court held that “a state may require all members of the public to be vaccinated against smallpox.”
Neither of those cases, though, involved a religious exception, which raises different concerns. While “freedom of religion” was one of the principles on which our country was founded, it also has its limits. In 1878, in the face of a claim of religious freedom, the Supreme Court upheld a statute that criminalized bigamy. The Court held that
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
In the modern era, whether one has a right to refuse the COVID vaccine because of a religious preference has been analyzed through several arguments. First, the analysis looks at whether a person is being asked to refrain from doing something that may be required by, or to do something that violates, their religious beliefs. In both cases, the courts try to determine whether the requirement is “neutral”, i.e., whether it is being imposed in one way on the general public, but under different standards for certain religious groups. For example, in a case from last year, the Supreme Court overturned a New York State COVID-related attendance limit of 25 persons at houses of worship because there was no such limit on secular businesses. While the vaccine mandate imposed on the federal workforce by the new Executive Order is imposed on everyone, it recognizes the religious exception, “required by law.” In fact, in August 2021, a court considered an appeal by students at Indiana University, who claimed that their religious preference justified an exemption from the vaccine requirement. Noting that the University’s mandate had allowed for a religious exemption, the court denied the claim.
Second, courts are beginning to look at whether the exemption is based on religion. In another August 2021 case, a student claimed that her religious preference (she is Catholic) exempted her from the vaccine mandate. The court noted, however, that the school had confirmed that the Catholic Church declared the COVID vaccine as “morally justified,” and the student had received other vaccines as a prerequisite to attending school. The court denied the exemption.
Finally, and this is perhaps the most critical, is balancing the right of employees to practice their faith against the possible consequences. In a decision from 1944, the Supreme Court held that, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” The EEOC’s guidance similarly provides that accommodating a religious belief may be an “undue hardship” if it “compromises workplace safety [or] infringes on the rights of other employees.” And the new Task Force guidance cautions that “Determining whether an exception is legally required will include consideration of factors such as … the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.”
A recent experience involving the Washington Nationals baseball team may foreshadow what employees seeking the religious exemption may experience. The team imposed a vaccine mandate for all non-player personnel and fired two coaches who refused to be vaccinated against COVID, based on their “sincerely held religious beliefs.” (They believed they could not take the vaccine because they were developed or tested with “aborted fetal cells.”) The Nationals agreed that the coaches had set forth a sincere religious belief, but concluded that “your continued performance of your duties without being vaccinated will pose an unacceptable risk to the health of Company employees (including you), customers, visitors, and others with whom you are required to interact.” (The coaches have vowed to take legal action.)
In sum, the new Executive Order allows federal employees to claim a religious exemption from the vaccine mandate, but that claim will be balanced against a perceived impact on the health of fellow employees. If the exemption is denied by the government, those employees will be able to seek review of that denial in court. In view of the above, however, employees will likely be confronted with the choice of agreeing to take the vaccine or seeking another job.
NB: The conditions surrounding the religious exemption became more important on September 24, 2021, when the Safer Federal Workforce issued new guidance regarding vaccine requirements for federal contractors. Specifically, the new guidance provides that
Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:
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- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation …
That accommodation includes the religious exemption, which will now apply to federal contractors as well as federal employees.
This article also appeared in Government Executive on September 23, 2021.