COVID-19 Vaccines v. Conscientious Objections
in the Workplace:
How to Prevent a New Catch-22
Since its outbreak, the COVID-19 health crisis has had a devastating impact not only on our social lives, but also on our political and juridical systems, and it has also generated a deep economic crisis. During the first wave, the lack of effective preventive strategies and scientific uncertainty gave rise to a proliferation of pervasive restrictive measures. But the implementation of vaccines and their massive distribution could be a turning point to stop the spread of the infection and to reach the “herd immunity,” for the sake of public health and the return to economic normalcy.
As far as businesses are concerned, the possibility to have their employees vaccinated will offer them the opportunity to resume face-to face customer service, injecting new lifeblood into the economic system, so it is quite normal that vaccination is strongly encouraged. However, the key question concerns whether companies can impose mandatory vaccination on their employees and whether employees can refuse vaccination for various reasons. Some companies in the U.S. would like to make vaccination compulsory. Even so, there is a high risk that their policies can be challenged for religious discrimination if they fail to provide religious exemptions.
For the moment, U.S. political choice has been not to impose a mandated COVID-19 vaccination. Academics have warned against the risk that can come from religious objections, which might become a serious barrier in the pursuit of the public interest in herd immunity. This argument assumes there is no constitutional obligation to grant religious exemptions from vaccination. However, this is not the first time that the U.S. has faced constitutional questions in the face of health challenges in the context of the workplace and employment. The judiciary has traditionally scrutinized in depth the tension between states and employers who would like to promote vaccination or impose vaccination policies, and employees who ask to opt out on religious grounds.
First of all, U.S. case law demonstrates that individual liberties grounded in the Fourteenth Amendment can be subject to unparalleled restrictions during a pandemic. During the current health crisis, US courts have revitalized the landmark precedent of Jacobson v. Massachusetts, where the Supreme Court held that individual liberties can be affected when a serious health crisis rises and that public well-being must be prioritized. In Jacobson, not only did the Court hold that states can impose vaccination mandates for public health reasons, but also it rejected the idea that individuals can avoid vaccination because of their own concerns that vaccination is not safe and effective.
Under a Free Exercise Clause analysis, a vaccination mandate can be considered a generally applicable and religiously neutral law, which could survive constitutional scrutiny, if a court resorts to the Smith standard of review. However, there is little doubt that the protection of public health during a pandemic can be defined as a compelling state interest. Thus, government employers’ imposition of a mandated vaccination could also pass strict scrutiny on the grounds of a balancing test as well as under the federal Religious Freedom Restoration Act. In addition, many states have enacted their own RFRA’s, which replicate the federal model and grant broad religious exemptions. Where private employers are concerned, Title VII of the Civil Rights Act applies and prohibits religious discrimination.
Religious objectors can belong to mainstream as well as minority religions. Title VII case law embraces a broad notion of religion, which covers idiosyncratic beliefs, practices, and observances. Following this perspective, exemptions are not reserved for organized religions and can be claimed on the basis of personal religious beliefs. Thus, courts may establish tests in order to avoid discrimination against unfamiliar religious beliefs. In addition, federal regulations provide a broad definition of religion, which extends to moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.” Following this address, a federal court in Ohio held that veganism “plausibly” qualified as a sincerely held religious belief and allowed the claim of an employee who was dismissed from a hospital after he refused vaccination because of his veganism.
In such cases, the employer ordinarily assumes that an employee’s claim for religious accommodation is founded on a sincere religious belief. However, an analysis of sincerity is not entirely precluded. An employer can ask for further supporting information if there is an objective reason for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. For their part, the courts tend to adopt a deferential attitude towards the EEOC’s interpretation of its own regulation.
Case law has articulated a burden-shifting analysis to assess the possibility for religious accommodation in the workplace. Thus, the duty to accommodate religious beliefs in the workplace is not absolute, but depends on whether an adjustment to general rules causes an “undue hardship on the conduct of the employer’s business.” The flexibility of the standards of reasonableness and undue hardship makes it difficult for courts to define the boundaries of an undue hardship burdening an employer. In any event, “reasonableness” means an accommodation need not be the one preferred by the employee. The U.S. Supreme Court adopted a strict reading of this notion, and it envisaged the threshold of a “de minimis cost.” Thus, employers are not compelled to accommodate religious beliefs if they have to be subject to something more than a de minimis cost. In addition, in cases concerning religious discrimination under Title VII, the Supreme Court, when balancing the interest of the employer with employees’ religious claims has also taken in serious account a third-party interest, so that other employees’ interest should not be burdened of the cost of religious accommodation.
As a general rule, states are cautious with regard to the imposition of mass vaccination. The Supreme Court has warned about the risk of arbitrary or unreasonable regulation, when these vaccination schemes extend “far beyond what was reasonably required for the safety of the public.” As an example, most states have enacted statutes providing for mandatory vaccination in certain contexts, namely, compulsory vaccination for school children. However, many states have expressly provided that parents can object to their school children’s vaccination because of their religious or philosophical convictions or even for “personal beliefs.” However, the outbreak of a pandemic can justify exclusion of unvaccinated children from school. In states where students were excluded from attendance of school lessons because of the refusal of parents to vaccinate their children, courts dismissed challenges, resorting to the 1941 decision in Prince v. Massachusetts. In Arkansas, a federal district court reiterated the rationale that public health prevails over individual liberties during a serious health crisis. In 2021, a New York state court rejected a claim against a state repeal of religious exemptions from vaccination of school children, as the repeal was a neutral and generally applicable law and was not aimed at targeting religion, as it was due to health concerns.
Nowadays, as a massive resort to religious exemption could put at risk the public interest in reaching “herd immunization,” commentators have urged the amendment of statutes granting opt-out permission on religious grounds, and states are considering this opportunity to grant a safer environment for children. Many state laws provide mandatory vaccination for healthcare workers, to protect vulnerable patients from the risk of vaccine-preventable diseases. However state laws vary with regard to which healthcare employees are asked to vaccinate, which vaccines are required, which exemptions are granted. Recently a hospital prevailed before the court against a claim for religious discrimination, by an employee who had lost her job because of her refusal to get vaccinated. Although the hospital supported the employee in her research to find another position in the hospital that did not require vaccination, she failed in finding it. According to the court, employers “are not obligated to create a position to accommodate an employee’s religious beliefs.”
The possibility to extend mandatory vaccination to other classes of employees is highly controversial.
With this in mind, the crucial question is 1) what are the implications of a unprecedented health crisis, such as the COVID-19 infection, on the application of all these standards and 2) whether the outbreak of a severe health crisis justifies more pervasive vaccination policies, potentially including additional classes of employees who are in close contact with vulnerable individuals, to prevent the unreasonable risk of harm.
An unprecedented pandemic can have also further negative implications for businesses, as it can result in economic losses in productivity and profits. A business that engages customer service activities would suffer more than a de minimis cost from religious exemptions, and accommodating religion could enhance the risk of spread of an infection, as well as reduce the flow of customers to the business in question. In addition, other employees would be burdened with the potential cost of religious accommodation of a single opting-out employee. Another crucial question is whether further employers could be charged with a duty toward specific groups of individuals and be challenged because of negligence or failure to take reasonable care. This has not not occurred in previous health crises. However, in a situation such the current global COVID-19 pandemic, due to the risk of spreading infection, courts would probably more seriously assess factors such as “the risk involved, the foreseeability of the injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden on the actor.”
Given the potential negative impact, it is easy to understand why employers have a pressing interest in having their employees vaccinated. However, further factors should be taken into account in a cost/benefits analysis and could influence the decision of the employers to impose vaccination during the outbreak of a global pandemic: “the workplace environment, the degree and context in which employees interact with one another or with customers, and any unusual vulnerability of employees, customers, or others with whom they come in contact.” If employees work remotely from home, for example, it would be more difficult for employers to demonstrate that accommodation implies more than a de minimis cost, as the risk of infection is less significant.
Another element that should be taken into account and that can be a game-changer is the scientific data concerning the safety and effectiveness of a vaccine. There is little doubt that a new vaccine generally raises concerns about safety and effectiveness. However, during an unparalleled health crisis, the risks can be legitimated by the greater risks generated by the COVID-19 infection, given its high level of seriousness and contagiousness.
The crucial question is whether and to what extent employers enjoy a margin of discretion under Title VII. Are they required to provide religious accommodation to employees claiming for religious exemptions during a pandemic? Given the risk of union complaints and religious discrimination challenges under Title VII, in 2009, the EEOC issued guidelines relating to the H1N1 pandemic, suggesting to employers that they take into account the possibility of “encouraging employees to get the influenza vaccine rather than requiring them to take it.” Commentators argued that this occurred as the legal risks connected with imposing a mandatory vaccination were usually higher than the risk of liability for not imposing it.
The guidelines also provided that “the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII,” even though the judicial threshold for identifying an “undue hardship” is low. On this point, the EEOC stated that during a pandemic “An accommodation poses an ‘undue hardship’ if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.” In the flu vaccination context, the EEOC explained that elements relevant to determine where accommodation gives rise to “undue hardship” implies “the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and potentially the number of employees who actually request accommodation.” Following the above mentioned guidelines, a federal court in Massachusetts held that accommodating an employee’s claim to forgo flu vaccination gives rise to undue hardship, namely an escalation of the risk of infection of already vulnerable individuals, provided that the employee worked in close proximity with patients.
Last December the EEOC issued new guidelines, wherein it tried to recalibrate employees’ rights and the pressing need for employers to have their staff vaccinated. The new guidelines are stricter, as they provide that “if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to dismiss the employee from the workplace.” Given the higher level of risk, the burden on the businesses can be more easily defined as undue hardship. In addition, other factors could increase the risk of liability for businesses, including factors such as whether the customers of a business typically belong to vulnerable classes and the extent to which a business can take sanitization measures.
We do not, however, know how the EEOC will react to effective claims for religious accommodation and what the real implications of the new guidelines will be. During the current health crisis, although employees can raise religious objections, the outbreak of a highly contagious virus representing a serious threat for human life could favor the prevalence of the employer’s interests. In the long term, masks and social distancing cannot be considered an effective replacement for vaccination. Given the high costs of COVID-19 in terms of public health and economic crisis, and as vaccination is the only effective means of prevention of the infection, there is little doubt employers suffer an undue hardship from religious accommodation of opting-out employees.
Although the guidelines provide that an employee can be dismissed where there is no way to accommodate religious beliefs, commentators warn that the legal framework is somewhat more complex. The new guidelines rely on additional protections that employees enjoy under state and local laws. As an example, New York Law coined a different standard, providing that religious accommodation must be granted to employees if it can occur without “significant difficulty or expense” for employers. Although courts have overturned a strict interpretation of undue hardship in two recent cases and adopt a more flexible standard (as in the New York statute), religious claims are likely to fail during an unprecedented health crisis. As vaccine exemptions put all the community at risk, they should not be easy to obtain.
However, employers have to be careful to avoid the implementation of disparate treatment between employees demanding exemptions for religious reasons and those requesting exemptions for secular reasons. The Supreme Court has recently held, in the context of the COVID-19 pandemic, that where secular exemptions are granted, religious activities cannot be subject to disparate treatment without objective and reasonable reasons. Will the above-mentioned rationale give rise to implications for private employers? Following this perspective, the ability of courts to identify the most appropriate secular analogy will influence the outcome of litigation and the granting of religious exemptions. Another crucial question will be whether and to what extent a single secular exception can affect judicial scrutiny in a private employment scenario.
So if businesses require vaccination, courts can play a key role in supporting the protection of public health. During the H1F1 pandemic many employees raised a high number of challenges because of mandatory vaccination, even though many of them were unsuccessful. During the current pandemic, fierce litigation between businesses and religious objectors could have a devastating impact on an economic system which is already going through a deep crisis. Employers could prevent litigation offering broad religious exemptions, but this option could result in lowering the rate of vaccination. On the other hand, it could “legitimize” refusal and encourage further requests for exemption, leading to an increase in individuals masking their concerns as religious, if they are afraid the vaccine is not safe and effective.
Religious cooperation can help to reduce this catch-22. Cooperation cannot be limited only to church-state institutional cooperation, but must also involve the development of an unofficial and constructive dialogue between different sets of values, both secular and religious. Where an adequate constitutional protection is offered to the collective dimension of religious freedom, a responsible use of that freedom is required. Following this perspective, all religious communities have a duty to give their contribution, as social actors, to negotiate conflicts, and to build a more inclusive society. This accommodation should be considered a two-way path in which religious demands receive acceptance when they are reasonable, and religious communities, on their part, facilitate the search for solutions that aim to reconcile competing interests. Religious communities should favor the health of their adherents and encourage their faithful to be vaccinated. Although small religious communities oppose vaccination, the majority of religions are not contrary to vaccination. In many cases, religious communities have demonstrated their ability to make their religious tenets flexible enough to avoid their faithful having to face ethical dilemmas. This vaccine-endorsing attitude is common among a number of religious traditions. During the current pandemic, mainstream religions have supported vaccination for the sake of public health, in some cases hosting immunization clinics and providing measures of different degrees for their employees who do not undergo vaccination and are without valid medical motives, in order to reduce the spread of the infection.
Thus, religious leaders can provide significant support to prevent religious reluctance and skepticism if they are provided with accurate information about the COVID-19 vaccine. This requires opening clear communication channels between the government and religious communities relating to the origin of the vaccines and scientific evidence of their safety and ethical sustainability. Cooperation between state and religious actors can prevent a legal conundrum and is crucial to develop a strategic synergy, where all social parties give their contribution to combat the virus, for the sake of the whole global community and the welfare of the individual. ♦
Adelaide Madera is an Associate Professor of Canon Law and Law and Religion at the Department of Law of the University of Messina, Italy. She is also a member of the Academic Board of the PhD School in Legal Studies at the University of Messina. Adelaide Madera’s research activities focus on the interrelationship between law and religion, specifically church-state relationships, religious organizations and the law, religious and civil marriage.
Madera, Adelaide. “COVID-19 Vaccines v. Conscientious Objections in the Workplace: How to Prevent a New Catch-22.” Canopy Forum, April 30, 2020. https://canopyforum.org/2021/04/30/covid-19-vaccines-v-conscientious-objections-in-the-workplace-how-to-prevent-a-new-catch-22/