Legal Update: How to Handle Religious Vaccine Objections

Surgical facilities across the country are in a holding pattern as court injunctions have temporarily blocked federal COVID-19 vaccination mandates for about half of the nation’s healthcare workers. While everyone tries to read the tea leaves as we watch governments and courts create new regulations as they go along, facilities must be prepared to act when the time comes to review what will likely be a record number of employee exemption requests based on “sincerely held religious beliefs,” the language used in anti-discrimination laws to define a valid reason for refusing vaccination. Let’s break down each element of this exemption.

• “Religious beliefs.” According to the Equal Employment Opportunity Commission, which offers guidance on religious exemptions from COVID-19 vaccinations, a religion doesn’t need to be a theistic concept and employees don’t need to attend an organization to be considered religious. A religion can be nontheistic and based on someone’s moral and ethical beliefs as to what they think is right and wrong. Courts have made it clear, however, that political or social beliefs are not religions, nor are lifestyles such as veganism or minimalism.

The definition of “religious” is purposefully broad and designed to fall in favor of the employee. That’s why the best practice is to accept most exemption requests, unless you have an abundance of evidence that they’re not authentic. Remember, you can’t decide a religion your employee claims to be part of isn’t legitimate just because you’ve never heard of it. Just as employees’ political opinions aren’t grounds for an exemption, the decision-makers who evaluate religious exemption requests must take extra steps to ensure they’re not granting or denying the exemptions based on their own beliefs.

• “Sincerely held.” You can weigh several factors when determining this requirement, including past behavior. For example, you could have good reason to question the legitimacy of the newfound religious beliefs of an employee who has always been an ardent atheist and made that position known in the workplace. You can also question whether the benefit they’d receive if granted their religious exemption is being sought for secular reasons — keeping their job, for example — rather than spiritual belief.

Having fielded an earlier exemption request for political or lifestyle reasons before a subsequent religious exemption request can also be an objective red flag. An exemption form from an online church that is soliciting new members in exchange for exemptions is obviously suspicious.

While these are acceptable issues to ask about, the answers don’t necessarily mean they’re grounds to reject the requests. Again, exemption laws are permissive by design. They explicitly allow people to change their minds, and even an employee who was overtly atheist last week could be legitimately religious this week. People do, in fact, change their views on things.

Rather than reject an exemption request because you feel leery about it, you’re better off asking the employee for a letter from their priest, rabbi or other spiritual leader if their religion has one. If it doesn’t, you can ask the employee to sign a document in which they describe the religion and attest that it contains sincerely held beliefs of theirs. That way, if the vaccine mandate is upheld and regulators audit your facility for compliance, you can show them the letter from the clergy member or signed employee affidavit. That should be enough to keep you in the clear. It’s a much better plan than the slippery slope of rejecting requests based on your detective work that was selective to specific employees.

Once you’ve engaged in the exemption request process in a way that was free of discrimination and intimidation, you can walk through an interactive process with the employee to seek an arrangement that accommodates their religious beliefs without posing an undue hardship on the facility. The accommodations could include regular COVID-19 testing and temperature checks, daily questionnaires asking if they’re asymptomatic, engaging in stringent infection control measures such as constant mask-wearing and consistent hand hygiene, and adequate social distancing whenever possible.

COVID-19 hasn’t changed the rules. You should deal with religious exemption requests in the same fashion you handle employees who have objections to traditional flu shots.

The U.S. Supreme Court is set to decide whether CMS exceeded its governmental authority by trying to implement mandatory vaccinations for healthcare workers employed by facilities that receive Medicare and Medicaid funding. No matter which side of the argument you’re on, consider the comment a federal judge in Montana made in his decision to grant a temporary injunction against the vaccine mandate: “During a pandemic such as this one it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”

I appreciate that quote, because just as employees’ exemption requests and the managerial rulings on them can’t be political, neither should the decisions on which potential vaccine mandates are based. Everything is new in this pandemic and we’re all adjusting on the fly as we go. Political agendas must stay out of workplaces and the judicial fronts. OSM