Federal COVID-19 Vaccine Mandate and Religious Exemptions

Abstract

After President Biden announced his plan to mandate businesses with 100 or more employees to require COVID-19 vaccinations, people who are opposed to receiving the vaccine are searching for ways to be exempt. Those seeking a religious exemption claim their sincerely held religious beliefs prevent them from receiving vaccinations. While vaccines are not disputed in most major world religions, the freedom of religion outlined in the Constitution applies to all religious faiths, even those that are less known and understood. The freedom of religion is an important part of American freedoms, and employers facing requests for these exemptions must decide how to respond to these requests without putting their other employees at risk. In this paper, I will explain the vaccine mandate and religious exemptions, make arguments for and against allowing religious exemptions for the COVID-19 vaccine in the workplace, and propose a plan of action for employees who wish to seek a religious exemption. 

Narrative

          January of 2020 saw the first confirmed case of COVID-19 in the United States. Since then, COVID-19 has spread throughout every state and county in the nation and has resulted in over 700,000 deaths. 

          Because of the seriousness of COVID-19, world governments put strict restrictions in place concerning public places and travel to try to contain the virus. In March 2020, the World Health Organization declared COVID-19 a global pandemic. The U.S. federal and state governments put mandates in place to close nonessential businesses, stay-at-home orders for nonessential workers, and enforce face coverings and social distancing in public. 

          Protective measures against COVID-19 are controversial in the U.S. Some citizens and lawmakers see COVID-19 restrictions as a necessary part of fighting the disease while others see these mandates as an overstep of federal and state authorities and a threat to personal freedoms. 

          In December 2020, when the Pfizer-BioNTech COVID-19 vaccine was first available in the U.S., there was finally hope that COVID-19 could be eradicated and life could go back to pre-COVID “normal.” 

          By January, there were reports of 21 allergic reactions to the Pfizer or Moderna vaccine among almost 2 million vaccinated Americans. This prompted the Center for Disease Control (CDC) to announce that vaccine benefits greatly outweigh potential allergic reactions. Of the 21 with reactions, 20 fully recovered and most had a history of similar reactions. 

          By April 2021, vaccines were available to all eligible people aged 16 and older. In August, the FDA approved the Pfizer vaccine with approval for the Moderna and Johnson & Johnson vaccines to follow in the next six months. These vaccines were approved because they met the FDA’s rigorous safety, effectiveness, and quality standards needed for emergency use authorization. 

          Currently, COVID-19 vaccines are available for free and often without appointment in over 80,000 locations. According to the Global Change Data Lab, 454 million doses have been administered in the U.S. and 195 million Americans (59.1% of the population) are fully vaccinated. However, this is not enough for Americans to rely on herd immunity to protect those who cannot be vaccinated, especially in states like Idaho, Louisiana, and Mississippi where the rate of fully vaccinated individuals is less than 50%. 

          Vaccines protect those who receive them and also those who interact with the vaccinated person. When enough people are vaccinated—typically between 75-94%— it creates herd immunity, or an environment where the illness is unlikely to spread because it cannot find a suitable host to infect. Herd immunity protects people who cannot be vaccinated like infants and immunocompromised adults. While herd immunity protects the unvaccinated, failure to reach the critical threshold of vaccination can result in negative consequences for the whole population. 

          Without herd immunity, diseases continue to spread and modify as we see with the COVID-19 Delta and Omicron variants. 

          CDC studies show that all COVID-19 vaccines approved in the U.S. provide protection from the virus and its potentially life-altering complications. Vaccine effectiveness studies show evidence that the vaccines perform as well in real life as they did in their clinical trials.

          No vaccine is 100% effective at preventing illness, but the COVID-19 vaccines come close. Two doses of the Pfizer vaccine in people 16 and older with no evidence of previously contracting COVID-19 is 95% effective at preventing infection. Two doses of the Moderna vaccine is 94.1% effective in people 18 and older. People have the most protection two weeks after receiving their second dose and are at that point considered “fully vaccinated.” 

Policy

          In September, President Biden announced the “Path out of the Pandemic,” a six-part plan to combat the continued spread of the coronavirus in the United States. The premier portion of this plan focuses on vaccinating the 80 million eligible Americans who have not yet received a first dose of a COVID-19 vaccine.

          After previously requiring eligible federal employees to be vaccinated, the White House is now focusing on the private sector. Businesses with 100 or more employees will now require their employees to be vaccinated or submit to weekly COVID-19 testing. This plan will affect over 80 million Americans working in the private sector. 

          The Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard (ETS) to implement the requirements of employees to test negative for COVID-19 weekly before coming to work. The ETS also requires workers to receive paid time off to get vaccinated and recover from post-vaccination symptoms so that they are not losing income complying to the mandate. 

Issue

          In light of this news, Americans who do not want to be vaccinated are searching for ways to be exempt from this requirement. There are medical exemptions for people with compromised immune systems like those battling cancer or living with HIV/AIDS and other reasons. Those without medical exemptions may want to apply for a religious exemption, but this is a complicated requirement to meet and will be judged on a case-by-case basis. 

          Religion holds great power over individuals and communities and provides meaning, comfort and community. Religion is typically associated with a system of belief and worship of one or many deities, but it is difficult to define for fear of excluding non-traditional, newer, or less popular forms of religion. 

          Title VII of the Civil Rights Act of 1964 allows workers to request a religious exemption to job requirements that conflict with their sincerely held religious beliefs, practices, or observances. This can mean being excused from work to celebrate religious holidays like Yom Kippur or the right to wear religious garb in the workplace like hijab and turbans. Failure to make reasonable accommodation for religion in the workplace is considered religious discrimination. Title VII does not protect social, political, personal preferences, or nonreligious concerns about the possible effects of the vaccine. 

          Religious freedom is one of the most dearly held American rights. The Free Exercise Clause found in the First Amendment of the Constitution is found in the phrasing, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (emphasis mine) reserves the right to accept any religious belief and engage in religious rituals. It protects beliefs and actions made on behalf of those beliefs.

          According to Michael McConnell’s “Religion and the Constitution,” the free exercise clause “envisions religiously compelled exemptions from at least some generally applicable laws.” The Legal Information Institute continues this line of thought, proposing that the Free Exercise Clause “seems to allow for the violation of laws, as long as that violation is made for religious reasons.” 

          McConnell further explains that some see this interpretation of the Free Exercise Clause in direct conflict with the Establishment Clause found in “Congress shall make no law respecting an establishment of religion…” which forbids the government to give preferential treatment on the basis of religion. 

          When seeking a religious exemption for a vaccine requirement, people should understand that exemptions can be made on the basis of a sincerely held religious belief, but that does not include strongly held personal or political beliefs. Beliefs about the vaccine’s supposed ineffectiveness or lack of research would not be considered a religious belief. 

          The Equal Employment Opportunity Commission (EEOC) is the federal agency to enforce Title VII which prohibits employment discrimination based on religion. The EEOC has updated guidelines about religious exemption from the COVID-19 vaccine mandate. In summary, the EEOC laws do not prevent employers from requiring employees who physically enter the workplace to be fully vaccinated against COVID-19. 

          Employees may request reasonable accommodation for their beliefs by notifying their employer that the vaccine requirement is in conflict with their sincerely held beliefs. These accommodations may include unvaccinated employees wearing a face covering, working at a social distance from coworkers and clients, working modified shifts or working remotely, testing periodically for COVID-19, or even accepting reassignment. 

          The EEOC recommends that employers assume requests for religious accommodation are genuine, but if the employer is aware of facts that cause reasonable questioning of the sincerity of belief or practice, the employer would be justified in asking for additional supporting information. Questioning an employee’s religious sincerity is unusual and largely a matter of personal credibility. Factors that might negatively impact one’s credibility include whether the employee has acted inconsistently with their professed beliefs or if the request follows earlier requests for the same benefit for nonreligious reasons.                 The EEOC understands that beliefs and levels of observance are likely to change over time, and new practices may still be sincerely held. 

          Employers are not required to make accommodations if doing so would cause an undue hardship on the business. Undue hardship in this case means requiring more than minimal cost or burden to the employer. When considering making accommodations, employers should consider the proportion of already vaccinated employees and the extent an employee interacts with non-employees whose vaccination status is unknown.  In this case of granting an exemption, an employer then must offer an accommodation alternative to vaccination. The EEOC suggests employers and employees to reference the Job Accommodation Network website for types of accommodations available. 

Problem statement

          The likelihood of granting religious exemptions for vaccines varies widely between states and institutions. The question of who can qualify for a religious exemption for the COVID-19 vaccine is up for debate. There are pros and cons to this exemption being made in the workplace. One on hand, religious freedom is one of the most dearly held American rights. On the other, COVID-19 is a highly transmissible and potentially deadly disease that continues to spread and vaccination is one of the most effective tools for stopping it. 

Objectives of the vaccine mandate

          The federal vaccine mandate will reduce the number of unvaccinated Americans by using regulatory powers through The Department of Labor to increase the number of Americans covered by vaccine requirements in the workplace. There was success when requiring federal employees and contractors to be vaccinated that the White House hopes to replicate in the private sector. 

Options for the unvaccinated

• Vaccinate. COVID-19 vaccines are safe, free and convenient; there are over 80,000 locations where one can walk in without an appointment and be vaccinated at request. Vaccinating protects people from contracting COVID-19 and in rare breakthrough cases, data shows that the effects of the disease on fully vaccinated people is less severe, meaning less intense symptoms and a lower likelihood of hospitalization, even in people 65 and older who are at higher risk for severe outcomes from COVID-19. For people with moderately to severely compromised immune systems, the CDC recommends a third dose of Pfizer or Moderna two weeks after the second dose was administered. 

• At the employer's discretion, submit to periodic testing before entering the workplace, wear a face covering, and work socially distanced from other employees. Not all jobs can be performed under these circumstances and it is up to employer discretion to prescribe the safety protocol an unvaccinated employee must submit to. 

• Apply for religious exemption. This may not be accepted and may be considered an unreasonable accommodation. It could cost thousands of dollars in legal fees per unvaccinated individual and put coworkers and clients at risk. 

Recommendation for the affirmative:

          Religious exemptions from the COVID-19 vaccine should be allowed in certain circumstances. 

In March 2021, the Archdiocese of New Orleans advised Catholics to not receive the Johnson & Johnson vaccine because it was created using an “aborted-derived cell line.” The Roman Catholic Church has a well-documented history of being anti-abortion as part of their religious and moral beliefs. 

          In this case, an accommodation would be to receive either the Pfizer or Moderna vaccines which were not developed using duplicated aborted cells and were approved by diocesan leaders. 

Other religions may have their reasons for refusing vaccines of all kinds, although it’s not present in leading world religions like Buddhism, Christianity, Hinduism, Islam, or Judaism. However, that’s one of the beautiful things about the freedom of religion, it applies to all religions, even if there’s only one follower. 

          Employers should work with their employees to find accommodations so that employees can work without compromising their religious beliefs. In cases where a worker can move to a socially distanced location, wear a face covering, submit to regular COVID-19 testing, and come into minimal contact with others, or even work remotely from home, vaccine mandates could be excused on a case-by-case basis. This plan will work better for some industries than others; an accountant or IT specialist can do their job remotely whereas a bartender cannot. 

Recommendation for the negative: 

          Religious exemptions should not be allowed under certain circumstances.

This is not an exhaustive list, but healthcare workers, elderly care, and education employees should be vaccinated. They come in close contact with vulnerable populations every day and carrying COVID-19 could have deadly repercussions. 

          New York state, Maine and Rhode Island healthcare workers are no longer qualified to receive a religious exemption for the COVID-19 vaccine, even if they have previously secured an exemption from their employer. In response, hospitals and medical centers are placing their unvaccinated employees on suspension for a period of time during which they are expected to get their first vaccine dose. Failure to do so will result in termination. 

          People should be comforted to know that those who care for the sick, elderly, and children are fully vaccinated against transmissible diseases. The risks of potentially carrying COVID-19 are far too great. While workers should not be forced to get vaccinated against their will, failure to do so makes them unfit for their professions. In the same way pilots cannot be exempted from having poor eyesight, healthcare professionals cannot be exempted from being vaccinated against deadly transmissible diseases. The greater good of the public outweighs one’s right to a chosen profession. 

Plan of action

          For those who wish to seek a religious exemption for the COVID-19 vaccine, speak directly to the human resources department or equivalent to begin the process. Employers may seek more information to understand the nature of the religious conflict with the vaccines, like providing documents that explains the tenets of their faith or written statements from religious leaders, and they have the right to do so. Understand that exemptions are granted on a case-by-case basis, and an employer granting an exemption to one does not guarantee an exemption for all. 

          Accommodations are to be decided on by the employer, not the employee, so that means the employee may have to submit to inconveniences like wearing a face covering and getting tested regularly. The employer has the responsibility to make decisions that do not create undue hardship for the business like impairing workplace safety or causing coworkers to take on an exempt employee's share of labor. 

          When a religious exemption cannot be made, like in the case of healthcare workers in New York, unvaccinated employees should be placed on a short period of paid leave and provided with resources to get vaccinated, like ensuring they have a ride to the vaccination site as well as information about the COVID-19 vaccine safety and effectiveness. In workplaces that employ chaplains like hospitals and military bases, religious counseling should be provided to employees to ease their concerns. Failure to be vaccinated within the given time frame should result in termination, possibly with the option to reapply if they decide to vaccinate later. 

Conclusion

          Religious freedom is a pillar of American values. People value their religion as a way to understand the world, build their moral and ethical code, interact with their heritage and culture, and work to promote good in their communities. When religion comes into conflict with health and safety practices, and especially when it can negatively impact people other than the religious practitioner, there is a struggle to balance religious freedom and individual responsibility as a member of society.

          There are cases where exceptions can be reasonably made in the workplace for people whose sincerely held religious beliefs conflict with vaccination. There are also cases where an exemption would create a dangerous environment for others that cannot be tolerated.

          For people seeking a religious exemption to the COVID-19 vaccine, begin the process by communicating with your employer and be willing to provide additional information to help them understand your concerns so they can consider the most effective accommodations. Exemptions are made on a case-by-case basis and are not guaranteed. 

          Religious concerns about the COVID-19 should be met with compassion and communication in the workplace. While most work to live, religion can give life meaning. When livelihood and faith contradict, it can cause great personal strife for the believer. Knowledge of the protections under law for the religious can help guide employers as they make decisions to best suit the business needs and protect their employees. 

​

Bibliography

​

Centers for Disease Control and Prevention. (2021, August 11). Covid-19 vaccine effectiveness research. Centers for Disease Control and Prevention. Retrieved November 28, 2021, from https://www.cdc.gov/vaccines/covid-19/effectiveness-research/protocols.html.

Centers for Disease Control and Prevention. (n.d.). Covid-19 vaccines work. Centers for Disease Control and Prevention. Retrieved November 28, 2021, from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html.

Centers for Disease Control and Prevention. (n.d.). Vaccine breakthrough infections: The possibility of getting COVID-19 after getting vaccinated. Centers for Disease Control and Prevention. Retrieved November 28, 2021, from https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/why-measure-effectiveness/breakthrough-cases.html#anchor_1636141795670.

Global change data lab. Global Change Data Lab. (n.d.). Retrieved November 28, 2021, from https://global-change-data-lab.org/.

Legal Information Institute. (n.d.). Free exercise clause. Legal Information Institute. Retrieved November 28, 2021, from https://www.law.cornell.edu/wex/free_exercise_clause.

McConnell, M. W., Berg, T. C., & Lund, C. C. (2016). p. 102-107. In Religion and the Constitution. essay, Wolters Kluwer.

Religious discrimination. U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved November 28, 2021, from https://www.eeoc.gov/religious-discrimination.

The United States Government. (2021, September 9). President Biden's COVID-19 plan. The White House. Retrieved November 28, 2021, from https://www.whitehouse.gov/covidplan/.

What you should know about covid-19 and the Ada, the Rehabilitation Act, and other EEO laws. U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved November 28, 2021, from https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L.