Next Week We May Actually Know Something about Whether the Religious Accommodation to the Covid Vaccine is Meaningful

Next Week We May Actually Know Something about Whether the Religious Accommodation to the Covid Vaccine is Meaningful

I confess to being alittle confused about the meaning and effect of the religious accommodation to the Covid mandate. Let me start by telling you what I do know and what some of you might not know, appreciate or accept.

I don’t care what people call it, it is not an exemption, in the sense that if you get one, you necessarily go back to pre-Covid life at your job. Rather, it is an accommodation which employers have to consider making under federal law.

The accommodation, if it is granted, does not guaranty you keep your exact same job under the same conditions you worked pre-Covid. The accommodation require weekly testing and masks. It may require reassignment to another job that does not include the level of interaction with co-workers or invitees (customers or patients) that you had before Covid times. It could stick you in a room away from all other vaccinated employees. United Airlines’ religious accommodation is indefinite unpaid leave!

It is up to the employer to frame the reasonable accommodation, and also to decide whether it is even possible to make a reasonable accommodation.

That is the difference between a religious (or disability) accommodation under and a medical exemption under this federal law. And of course, the religious and disability accommodation under this federal law is quite different from the religious or personal belief exemption which many states have for mandatory school vaccination requirements. Those are actual exemptions, meaning if your child has one, he/she goes to school like all other children.

I also know that in general, the law allows employers to make inquiries to determine whether the employee really has a sincerely held religious belief in opposition to the Covid vaccines. However, I don’t know how deeply the questioning can go. I have heard of employers asking employees whether they were vaccinated as a kid and whether their kids are vaccinated. Relative to the fetal tissue issue, I hear about questions about whether the employee uses the many common drugs (including Motrin and Benadryl) where their development involved the use of fetal cells.

Some companies and state entities require a letter from the religious organization. While that could be considered evidence, I don’t think that will survive as a prerequisite, as a statutory matter, since membership in an organized religious is not required to seek or obtain a religious exemption, or so I read the applicable EEOC rules.

I am also not sure what kind of process is required under the law (and that would be the Civil Rights Act which protects against discrimination based on religious practices). I think we may get some answers to this and some other questions next week based on two related cases involving New York State health care practitioners.

As you know, an upstate NY federal judge issued a TRO against the enforcement of the NY state vaccine mandate for state health care employees. However a Brooklyn federal district judge refused to grant a preliminary injunction against the same law. Complicating things but making it much more interesting, last week, the Second Circuit stayed the enforcement of the regulation until it heard the appeal of the denial of the preliminary injunction, (which it will do on October 14th, one day before the preliminary injunction hearing in the upstate NY case.

This time, I think the Second Circuit is going to have to write an extensive opinion. But of course, the next day, the Northern District’s case goes to the injunction hearing. So does the Second Circuit rule from the bench and write later? Where would that leave the Northern district judge? To me it’s a mess, which is not necessarily a bad thing if you’re challenging the mandates. And if you are against vaccine mandates and for the religious accommodation, a temporary win is still a win, (until there is a substantive loss).

There is still much that has to be played out and case law to be made in terms of the contours of the religious accommodation and the required process and its limitations. But what I am not seeing in the end game is all employees who obtain such an accommodation have the exact same employment circumstances they had pre Covid, and that is something that needs to be considered by those employees waiting for the results of these cases.

I also don’t see the courts overturning the ability of companies and governments to decide that based on the job and the circumstances, there is no reasonable accommodation that can be made.

And for many reasons, I think the courts are going to be reluctant to start second-guessing employers on these decisions, if for no other reason to avoid the possibility that the courts would be inidated with these cases, directly or indirectly through a judicial appeal of a federal employment (EEOC) administrative process. But I do expect the courts to start to set out some basic principles about how employers have to handle the religious accommodation process and set some boundries and guidelines.

Rick Jaffe, Esq.

5 thoughts on “Next Week We May Actually Know Something about Whether the Religious Accommodation to the Covid Vaccine is Meaningful

  1. It’s odd because we have always had exemptions for vaccines and they have been just that exemptions. You were not seeking an accommodation. You had an exemption. You got it and you went about your normal life. This is at schools for students all around the United States for vaccines.

  2. Mr. J – 2 things……
    1. What is your opinion if an employer is also ‘mandating’ this for REMOTE employees on the pretense – that ‘they maybe remote today’ but will be requirements to come to remote office or client meeting….so just do it now anyway in the case you ‘might go’ somewhere onsite? Terrible
    2. Accommodation vs Exemption i think is a good topic and “sincere religious belief”

    I would hate to get forced on the jab, then this NY case comes through to help others across the US.

  3. I think the courts are going to be very reluctant to second guess private businesses or state employers even for people who mostly work remotely.
    While the NY decisions might give some general guidances, different jobs have different kinds of accommodations which would be reasonable. The NY cases involve health care workers so you would think it would be accorded even more deference.
    But the law specifically allows employers to find that a reasonable accommodation cannot be made, even if it negatively impacts on a person’s religious practices. The test is pretty low, something about that the accommodation cant have more than a de minimus effect on the business.
    I think people are reading too much into these TROs in terms of what the courts will do.
    As these judges often say, “the constitution isn’t a suicide pact.” And random individuals don’t get to make public health and safety decisions even if they are supported by some scientists.

  4. It’s not just “some scientists” who say that natural immunity is just as good as, if not (far) superior to, vaccination. That is the “consensus,” as loathsome as I find that term (it was once the “consensus” among established authorities that Galileo was spreading misinformation). This is an egregious oversight by the mandates that at some point a truly fair judicial system would acknowledge. As far as religious exemptions, I find it unlikely that the Supreme Court would side with a company or state employer vs. an individual in a dispute over the genuineness of one’s religious conviction. If so, the Constitution has been rendered meaningless.

  5. I know this isn’t the correct thread, but I wanted to post on a current thread in hopes it gains attention.
    Last year Mr. Jaffe took part in the Lawsuit against UC mandating the flu vaccine. I really appreciated all of his hard work and I know so many others did too.
    I work for UCD and I am thrilled to say that the flu vaccine mandate for this year was rolled out. I had anticipated that once it did, I would need to file a religious exemption as I did for the covid-19 vaccine. I am excited to share that the new mandate has a declination form to fill out if you simply don’t want it! This is huge. Last year you had to file a religious exemption to opt out of the flu vaccine at UCD, but UCSF had a form to opt out simply because of choice.
    While Mr. Jaffe fought hard on the UC flu mandate last year, I call this a victory and want to express gratitude once again for your work! I know myself and others are relieved! Thank you so much!

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