by: Robin Bresky and Randall Burks
As the coronavirus pandemic continues, courts are grappling with issues such as whether COVID-19 vaccine mandates must provide for religious exemptions. A related issue is whether the employer or school can seek verification that an exemption request is based on sincerely held religious beliefs. We will survey some recent court rulings and EEOC guidance.
First, we should put vaccine mandates in context. In 1905, the U.S. Supreme Court held in Jacobson v. Massachusetts that states can compel smallpox vaccinations. In 1922, the Supreme Court confirmed in Zucht v. King that schools can require such immunizations. According to an October 2021 report from Pew Research Center, all 50 states mandate vaccination of children against several communicable diseases. Colleges and universities also require immunizations. In Harsman v. Cincinnati Children’s Hospital Medical Center, a federal court stated in September 2021 that “the overwhelming majority of courts to consider vaccine mandates have found them constitutionally sound.”
As for religious exemptions, various states and courts have taken different positions. A state statute in Florida, section 1003.22(5)(a), requires public K-12 schools to exempt a student from vaccinations if “the parent of the child objects in writing that the administration of immunizing agents conflicts with his or her religious tenets or practices.” However, some states do not provide for religious exemptions. For example, in Workman v. Mingo County Board of Education, the Fourth Circuit Court of Appeals held in 2011 that schools in West Virginia need not allow religious exemptions and the right to free exercise of religion does not include freedom to expose others to communicable disease. In 2016, a federal trial court ruled in Whitlow v. California Department of Education that “it is clear that the Constitution does not require the provision of a religious exemption” in schools.
Recent Mandates and Rulings
Several states or entities within those states, such as Maine, New York, and Rhode Island, have recently adopted COVID-19 vaccine mandates for employees which do not provide for religious exemptions. The mandates are being challenged in litigation, partly because Title VII requires religious accommodations for employees “unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business,” and (relevant to government regulations) the First Amendment provides for free exercise of religion.
On September 24, 2021, a federal court in Kentucky acknowledged in Beckerich v. St. Elizabeth Medical Center that exemptions from a hospital’s COVID-19 vaccine mandate should be granted for hospital employees who had a sincere religious objection under Title VII.
On October 7, 2021, the U.S. Court of Appeals for the Sixth Circuit in Dahl v. Board of Trustees of Western Michigan University held that student athletes were likely to succeed on their First Amendment claim that a university infringed on their right of free exercise of religion when it enforced a coronavirus vaccine mandate and ignored or denied requests for religious exemptions.
On October 12, 2021, in David Sambrano v. United Airlines, Inc., the federal court for the Northern District of Texas entered a temporary restraining order to keep the status quo while the court decides whether to issue a preliminary injunction precluding an airline from placing workers on indefinite unpaid leave for declining the vaccine.
On October 12, 2021, in Dr. A et al. v. Hochul et al., the federal court for the Northern District of New York granted a preliminary injunction against a coronavirus vaccine mandate for healthcare workers that does not provide for a religious exemption (the state eliminated the exemption that existed in the prior version of the regulation). The court found that the plaintiffs are likely to succeed on the merits of their claims under Title VII and the First Amendment.
On October 14, 2021, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Maniscalco v. New York City Department of Education, case number 21-2343, where teachers and department employees seek exemptions from vaccine mandates. The Second Circuit was to hear oral arguments on October 27 in We the Patriots USA, Inc. v. Hochul, case number 21-2179, a similar appeal concerning health care workers in New York.
On October 20, 2021, the First Circuit Court of Appeals affirmed a trial court’s denial of a preliminary injunction against Maine’s COVID-19 vaccine mandate for healthcare workers, which does not provide for a religious exemption. Among other things, the appellate court in Does v. Mills, case 21-1826, found that the plaintiffs have not shown a likelihood of success on their Title VII claim because granting exemptions would cause the hospitals to suffer undue hardship.
With respect to whether the sincerity of the asserted religious belief can be questioned, in August 2021 a federal district court in Harris v. University of Massachusetts found no problem with a state university’s practice of seeking to verify the sincerity of students’ asserted religious objections such as through a letter from clergy of a recognized religion.
However, in Fallon v. Mercy Catholic Medical Center, the Third Circuit Court of Appeals stated in 2017 that “no court should inquire into the validity or plausibility of the beliefs” of an employee; the court can only “decide whether the beliefs … are sincerely held and whether they are … [indeed] religious” and not merely political, sociological, philosophical, or medical in nature.
In 2002 in Boone v. Boozman, a federal district court in Arkansas struck down a statute which allowed for a religious exemption only for adherents or members of a “recognized church or religious denomination,” in effect discriminating against a nonsectarian individual with a sincerely held individual religious belief against vaccination. Similarly, in guidance updated in January 2021, the EEOC has advised that Title VII protects more than the practices specifically mandated by an employee’s religion; the proper inquiry under Title VII is only “whether or not the religious belief system is sincerely held” by the individual.
In view of this survey, it seems likely that federal district courts will continue to reach disparate conclusions about whether COVID-19 vaccine mandates must allow for religious exemptions and whether the sincerity of objectors can be questioned. Those cases will likely lead to appeals where various federal circuit courts reach different conclusions, creating a split of authority that could lead to review by the U.S. Supreme Court.
This article originally appeared in the Daily Business Review on November 8, 2021.