Friday, 19 July, 2024
HomeMedico-Legal AnalysisEmployees turn to constitutional protections to avoid mandatory vaccinations

Employees turn to constitutional protections to avoid mandatory vaccinations

Foreshadowing what’s likely to happen in South Africa, as more US employers move to mandatory vaccination for staff, the vaccine-sceptical are increasingly resorting to constitutional protections of religion as a way of avoiding the jab, writes MedicalBrief.

This, as well as seeking medical exemptions to vaccination, is new territory, reports CBS News.

In the US, large corporations must, under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, offer exemptions to individuals with either a disability or “sincerely held” religious belief that prevents them from getting the vaccine.

No major religious denomination in the US opposes vaccination outright. But an individual's “sincerely held” religious belief does not have to be part of an organised-religion mandate to be considered a valid reason for exemption from getting the vaccine.

“It can be a personal, sincerely held religious belief which arises from the very nature of freedom of religion articulated in the First Amendment,” said Domenique Camacho Moran, a labour attorney at New York-based law firm Farrell Fritz.

Employers in the past have been inclined to give workers the benefit of the doubt and to accept any requests on the basis of religious beliefs as genuine. But given the high-stakes nature of the coronavirus, they are now giving such requests a second look.

“The employer generally has to go with the idea that the employee's request is based on their sincerely held religious belief. But if the employer has an objective basis for questioning its sincerity, the employer is justified to seek additional information,” said Keith Wilkes, an employment attorney at Tulsa, Oklahoma-based firm Hall Estill.

“It is always possible that a local church or temple does in fact espouse a view that vaccination is contrary to religious beliefs, so there is room for the employer to dig deeper on those sorts of requests,” Wilkes said.

Requests for exemptions on disability grounds, on the other hand, tend to be more straightforward. Clear documentation from a doctor or health care provider of a medical condition that makes vaccination risky or unsafe usually eliminates questions around whether an employee has valid reasons for exemption or simply does not wish to be vaccinated. No known medical conditions absolutely prevent an individual from getting vaccinated, but a worker could be exempt from a COVID vaccine demand if they have a known allergy to vaccine components, for example.

“With most disability accommodation issues, we automatically get a third party involved. There is a medical provider who explains the disability that prevents this employee from being vaccinated,” Moran said.

Employment lawyers encourage individuals making requests for religious exemptions to vaccine mandates to document their beliefs in writing. But even with written documentation, the determination process for employers can be murky.

“It's not as clear as the medical exemption. What is key is even the Equal Employment Opportunity Commission has not given the best guidance on how it is you determine what a sincerely held religious belief is,” said Sadie Banks, assistant general counsel and human resources consultant for Engage PEO, a human resources and benefits provider.

What's clear is that when an employee submits a request for an exemption, the employer must engage in a two-sided dialogue to determine if the worker's request can be met.

“Employers still need to engage in the interactive process to determine what the practice entails and someone else's belief is sincere or not,” Banks said. “But I cannot tell you that what you sincerely hold as a religious belief does not exist, so that's a potential challenge.”

According to CBS News, most labour attorneys agree there is a lot of legal grey area when it comes to claiming and approving religious-based requests for vaccine exemptions.

“I don't think anybody is 100% clear. The EEOC's view of sincerely held religious belief is employers aren't supposed to challenge the sincerity of the belief,” said Jason Reisman, co-chair of Blank Rome's labour and employment practice group.

Prior to the pandemic, employers asked few questions around individuals' religious beliefs, if for instance an employee made a request to not work on a holy day.

“Before vaccine mandates, I think religious accommodations were few and far between and generally related to things that didn't require employers to ask too many questions. It was more about can you work on the Sabbath of your particular religion,” Reisman said.

But in the era of COVID-19, and with the rise of the more contagious and virulent Delta variant, employers are asking more probing questions: “They are becoming more brazen about asking for supporting information, like a note from a religious leader,” Reisman said.

Simply saying, “I believe in God, I can't get vaccinated,” won't fly either, according to Carrie Hoffman, a labour attorney with Foley & Lardner. “There has got to be some kind of explanation that's better than that," she said.

The issue is already playing out in workplaces across the country. United Airlines recently denied several employees' requests for religious exemptions from the airline's vaccine mandate. The airline said that in most cases, employees who refuse to get vaccinated won't be allowed into the workplace starting from 2 October. At that point, employees whose exemption requests were approved will be placed on unpaid leave until the pandemic meaningfully subsides.

Biden's requirement for companies is a kind of soft mandate, meaning they must require employees to be vaccinated or submit to regular COVID-19 testing. Regular testing can serve as an accommodation that employers can provide for workers who don't wish to be vaccinated for any reason, religious or otherwise.

In the case of companies that choose to mandate the vaccine outright, employee requests to be exempt because of personal preference or distrust of the government or pharmaceutical companies, for example, will be shot down.

“It can't just be that it's against my religion,” Wilkes said. “It's still a broad standard and it needs to be a sincerely held belief and not just subterfuge because you don't trust the science.”


CBS News article – What constitutes a "sincerely held" religious exemption to a vaccine mandate? (Open access)


See more from MedicalBrief archives:


US hospital group fires 150 for refusing vaccination


Judge refuses to block vaccination law


Mandatory COVID-19 vaccination policies entail 'considerable legal risk'


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