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.