Vaccine mandates: How sincere is a ‘sincerely held belief’?

Over the past year, a significant number of American workers on both the right and left have expressed political objections to getting a vaccine.  

Many have appealed to ideas of individual freedom, personal choice, and the integrity of their bodies, or concerns over the safety of the COVID-19 vaccines that were developed and tested in a relatively short amount of time.

But as new state and federal mandates begin to require vaccination as a necessary condition for workplace safety, many U.S. employers have been receiving a growing number of requests from employees seeking exemptions based on their religious objections.

Such requests have a long and sometimes contentious history in American workplaces. Yet the country’s robust civil rights traditions have generally given workers with “sincerely held religious beliefs” a lot of leeway, so long as the accommodations they seek to exercise their faith freely do not cost employers more than a minimal expense.

As the delta variant created a surge in caseload this summer, overwhelming a number of hospitals in states with lower rates of vaccination, many employers have felt caught between two legally fraught obligations: providing a safe workplace while at the same time evaluating employees’ requests to opt out of getting a vaccine for religious reasons.

“This is an area where the distinction between a religious and ethical objection and a political and policy objection will get really fuzzy really quickly, and that’s going to put employers in a very difficult position,” says Jamie Prenkert, professor of business law at Indiana University’s Kelley School of Business in Bloomington.

“The courts have been pretty clear that the religious exemption process can apply to non-theistic ethical or moral objections, but not to policy or political objections,” Professor Prenkert says. “But depending on how people voice those objections, that becomes a very difficult line to draw.”

For most of this year, most businesses have hesitated to mandate vaccines. Facing worker shortages and a maelstrom of political controversies during the shutdown, some opted instead for a “carrot” approach, encouraging their employees to get inoculated by offering in some cases up to $500 in bonuses or extra hours of pay.

But even before President Joe Biden announced his controversial plan to institute a sweeping vaccine mandate affecting some 100 million American workers, many employers began to take a harder line, putting in place their own mandates as cases began to surge. 

In an August poll of nearly 1,000 U.S. businesses employing some 10 million workers, the consultant Willis Towers Watson found that over half of those surveyed said they would put in place some sort of vaccine mandate over the next few months – more than doubling the 21% of businesses that were already mandating vaccines.

“These new federal requirements will now give employers some cover,” says Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University in Ohio. “They won’t have to come up with some independent policy that they have to figure out and then struggle to put in place.”

Religious exemption requests on rise

At the same time, however, many employers, both private and public, have struggled with the number of religious exemptions they are starting to receive as more employees begin to explore how to apply.

“This topic is challenging for the individuals charged with sorting through and approving or denying the religious exemption requests,” says Richard Tarpey, assistant professor of management at Middle Tennessee State University’s Jones College of Business. “It seems apparent that some workers who have not held a religious belief against a vaccine in the past now may claim to hold one.”  

A number of evangelical pastors and Republican lawmakers have urged their followers to claim a religious exemption in response to vaccine mandates in the workplace, some offering to write letters to employers to support their religious claims. Conservative legal groups have already filed legal challenges to those denying such requests.

Last month, when New York health officials approved a sweeping new vaccine mandate covering most of the state’s health care workers, it also decided to eliminate religious exemptions. Even though such exemptions had been included in the state’s previous emergency orders, observers say officials were becoming concerned over the significant rise in the number of health care employees submitting applications to opt out of the state’s vaccine mandates for religious reasons.

A federal judge blocked New York’s mandate this month, however, after a number of doctors, nurses, and other health care workers, each of whom wished to remain anonymous, sued the state for violating state and federal protections against religious discrimination.

The plaintiffs are “imminently at risk of professional destruction, loss of livelihood and reduction to second-class citizenship because they cannot in conscience, given their sincere religious beliefs, consent to be injected with vaccines that were tested, developed or produced with cell lines” from fetuses, wrote The Thomas More Society, which helped the plaintiffs bring their case, in a memorandum to the court. 

Religious opponents to vaccine mandates have begun to coalesce around the politically contentious issue of abortion when explaining their reasons for seeking exemptions, observers say.

For businesses, questioning the sincerity of an employee’s religious belief is both legally and practically fraught, employment experts say.

“Generally speaking, when it comes to religious accommodations, employers do need to take employees at their word,” says Erika Todd, an employment attorney at Sullivan & Worcester in Boston. “There can be some amount of room to ask some follow up questions, and there might be an issue if an employer does have a specific reason to question whether a particular employee’s objection is based on a sincere religious belief or a political belief.”

Officially, most religious groups have supported vaccines, and a number of prominent Evangelicals and outspoken opponents of abortion have urged their followers to get the vaccine. “I will take it not only for what I hope will be the good of my own health, but for others as well,” wrote Al Mohler, president of the Southern Baptist Theological Seminary, on his website.

Pope Francis has called getting a vaccine “a simple but profound way of promoting the common good and caring for each other, especially the most vulnerable,” and the U.S. Conference of Catholic Bishops has proclaimed that getting vaccinated “ought to be understood as an act of charity toward the other members of our community.”

In a public statement on the issue, The First Church of Christ, Scientist, the publisher of the Monitor, said: “For more than a century, our denomination has counseled respect for public health authorities and conscientious obedience to the laws of the land, including those requiring vaccination. ... We see this as a matter of basic Golden Rule ethics and New Testament love.”

Beliefs of an individual, not a denomination

But America’s civil rights traditions specifically focus on the religious beliefs of an individual. Although some leaders have been offering to supply employees with a religious version of a “doctor’s note,” these are not necessary, Ms. Todd says.

Indeed, the U.S. Equal Employment Opportunity Commission makes that clear. “An employee’s belief or practice can be ‘religious’ ... even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it, explains the EEOC.

But employers may still ask employees to explain their religious beliefs in writing, says Bob Nichols, co-head of the labor & employment practice in the Houston office of Bracewell LLP.

“You could ask them to write you an attestation or an explanation that they have this sincerely held religious belief – and that’s what our clients can and routinely do, and I think it’s appropriate,” says Mr. Nichols, who has been advising Fortune 500 companies throughout the pandemic. “They can say, ‘OK, write me a statement attesting to that belief or practice you say you have, and to the best you can, please explain that belief to me and sign it.’”

Some employers had begun to take a harder line with their employees, even before the Biden administration’s mandate. 

Earlier this month, United Airlines told employees that those receiving religious exemptions from the company’s mandate would be placed on unpaid personal leave starting on Oct. 2. Those employees would be allowed to come back to work, the company said, after it figured out how to put into place appropriate testing and safety measures.

Employers are starting to consider health coverage surcharges for those employees who refuse to be vaccinated, even if for religious reasons, a tactic more firms are starting to review as one alternative to a mandate, writes Wade Symons, an employment benefits attorney with the human resources firm Mercer.

Last month, Delta Airlines was among the first to announce it would be adding a $200-a-month health insurance surcharge for employees who refused to get a vaccine.

Some companies, too, have been aggressive in testing the sincerity of their employees’ religious beliefs. Conway Regional Health System, a health care provider in Arkansas, asked employees seeking an exemption to sign a “Religious Exemption Attestation for COVID-19 Vaccine.”

Since the majority of Conway’s requests cited religious opposition to the use of fetal cell lines, the form listed dozens of common pharmaceutical products that also used fetal cells in their development, including products such as ibuprofen, Tylenol, Pepto-Bismol, and Tums.

“I truthfully acknowledge and affirm that my sincerely held religious belief is consistent and true and I do not use or will use any of the medications listed …” the attestation form states. 

“We thought it was prudent just to try to get some clarification with staff, so the staff understood what they were committing to,” Conway’s CEO Matt Troup told KATV in Little Rock. “This isn’t an attempt to try to shame people in any way. It is to make sure that they understand just how ubiquitous these fetal cell lines are.” 

While such tactics might exacerbate workplace tensions, Professor Tarpey at Middle Tennessee State University says “employees who have a sincere religious belief against a vaccine should be able to articulate the belief and how getting the vaccine will specifically violate the belief offered.” 

“Ultimately, these issues will most likely end up in the courts, considering the polarized nature of the various state laws that exist ... and the forthcoming [Biden administration] vaccine requirement,” he says. “Employers will need to balance the many needs of the organization, especially during tight labor market times. Customer and co-worker protection will need to be balanced against having enough staff to run the organization should vaccine resistance on a religious basis become widespread at a company.”