“Religious Exemptions to Covid-19 Mandates: Paths through the Minefield,” by Anna Beckelman with Helen D. Reavis
Tomorrow, on January 7, 2022, the Supreme Court is expected to hear an oral argument regarding religious exemptions from a vaccine mandate by the Centers for Medicare & Medicaid Services, a federal agency, with a focus on the limits of federal authority.
As federal, state and local governments institute COVID-19 vaccine mandates to ensure greater safety in schools, offices and elsewhere, many Americans are claiming that receiving the COVID-19 vaccine would violate their religious beliefs and that they should therefore be exempt from such mandates. While no major world religion explicitly prohibits vaccination, there is support for the position that the sincerely held religious beliefs of those requesting such exemptions are still protected by law, as discussed below. We also note that stresses due to COVID-19 vaccination mandates could lead employees to have health or medical related issues requiring accommodation, leading back to the question of what is reasonable accommodation or permissible leave from work due to COVID-19 vaccination mandates. The legal minefield is a difficult one to navigate in these times and legal counsel is highly recommended.
Title VII of the Civil Rights Act of 1964 defines religion to include “all aspects of religious observance and practice as well as belief.”[1] According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), “religion includes not only traditional, organized religions…but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others,” and “an employee’s belief, observance, or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.”[2] However, social, political and economic beliefs, as well as personal preferences, are not considered religious beliefs and are not protected by Title VII.[3]
Under Title VII, employers must, absent undue hardship, reasonably accommodate religious beliefs that are sincerely held. While the EEOC advises that employers should “ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief,” employers are permitted to seek additional supporting information regarding an employee’s beliefs if they have an objective basis for questioning the religious nature or the sincerity of that employee’s belief, observance or practice.[4] An employer’s good faith inquiry into the basis for the employee’s request is therefore permitted.
In the context of vaccine mandates, Title VII and related EEOC guidance present employers with the difficult task of respecting and accommodating the religious beliefs of those seeking exemptions while also preserving the health and safety of the workplace as the COVID-19 pandemic continues. This balance is particularly challenging in the health care field, given many health care workers’ substantial interaction with the public, including with people most vulnerable to severe COVID-19 disease and complications.
In August 2021, then New York State Governor Andrew Cuomo issued a vaccine mandate for health care workers in the state. The mandate allowed for religious exemptions from receiving the vaccine. Following Cuomo’s resignation, however, Governor Kathy Hochul’s administration issued a new mandate that did not include religious exemptions.[5] (See 10 NY ADC 2.61.)[6] There is precedent for this: Vaccine mandates without religious exemptions are not novel in New York; the State has required health care workers to be vaccinated against rubella since 1980 and measles since 1991, and neither mandate permits employees to decline the vaccines for religious reasons.[7]
The elimination of religious exemptions recently led seventeen health care workers to file a lawsuit in the United States District Court for the Northern District of New York against the Hochul administration, seeking to “enjoin defendants from…enforcing § 2.61 ‘to the extent that it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination mandates.’”[8] In their complaint, the plaintiffs, most of whom were Catholic,[9] stated that they held a sincere religious belief that prevented them from consenting to receive a vaccine which had been “tested, developed or produced with fetal cell[ ] lines[s] derived from procured abortions.”[10] Because they viewed abortion as a “moral evil,” they considered the vaccine mandate a violation of their First Amendment right to free exercise of religion,[11] although as New York health care workers, the plaintiffs presumably would have received the rubella vaccine, which is believed to have connections to the same fetal cell lines on which the objections to the COVID-19 vaccines were based.[12]
The Pfizer and Modern mRNA vaccines were reportedly tested on such fetal cells for “proof of concept” early in their development, and the Johnson & Johnson vaccine reportedly required the use of fetal cell cultures to produce and manufacture that vaccine.[13] While the Catholic Church has long opposed elective abortion, it considers getting the COVID-19 vaccine morally acceptable; further, the U.S. Conference of Catholic Bishops has specifically stated that “receiving a COVID-19 vaccine ought to be understood as an act of charity toward the other members of our community…Given the urgency of this crisis, the lack of available alternative vaccines, and the fact that the connection between an abortion that occurred decades ago and receiving a vaccine produced today is remote, inoculation with the new COVID-19 vaccines in these circumstances can be morally justified.”[14] However, as set forth in the EEOC guidance discussed above, the Catholic Church’s position in favor of the COVID-19 vaccines does not invalidate the plaintiffs’ belief that receiving the vaccine conflicts with their religious convictions about abortion.
On September 14, 2021, Judge David Hurd of the Northern District of New York granted the plaintiffs’ motion for a temporary restraining order barring the defendants from enforcing any requirement of the vaccine mandate for employers to deny or revoke religious exemptions from the COVID-19 vaccination, interfering with the granting of religious exemptions by employers or taking any disciplinary action regarding the licensure, certification or other professional qualification of any of the plaintiffs for seeking or obtaining a religious exemption.[15] Subsequently, on October 14, 2021, Judge Hurd granted plaintiffs’ motion for a preliminary injunction.[16] Judge Hurd stated in his opinion that “the public interest lies with enforcing the guarantees enshrined in the Constitution and federal anti-discrimination law” and concluded that the plaintiffs had “established that § 2.61 conflicts with longstanding federal protections for religious beliefs,” as the mandate interfered with the “federally protected right to seek a religious accommodation from…individual employers.”[17]
While the Court conceded that the vaccine mandate addressed an “interest of the highest order,” it was not “narrowly tailored” enough to address the COVID-19 health crisis and too restrictive to survive strict scrutiny. “[T]here is no adequate explanation from defendants about why the ‘reasonable accommodation’ that must be extended to a medically exempt healthcare worker under § 2.61 could not similarly be extended to a healthcare worker with a sincere religious objection,” Judge Hurd wrote.[18]
The Hochul administration appealed the N.D.N.Y. decision, arguing before the U.S. Court of Appeals for the Second Circuit that the vaccine mandate was constitutional. On October 29, 2021, the Second Circuit vacated the preliminary injunction, thus permitting employers to terminate healthcare workers who refuse the COVID-19 vaccine on religious grounds.[19] Prior to the Second Circuit ruling, nearly 16,000 healthcare workers in New York had already been granted religious exemptions from the COVID vaccine, according to the New York State Department of Health.[20]
The Second Circuit’s opinion in the two cases involving the religious exemption (A. v. Hochul and We the Patriots USA, Inc. v. Hochul), found a preliminary injunction inappropriate on a number of legal grounds.[21] The plaintiffs suggested the vaccine mandate’s lack of a religious exemption meant that the mandate was not “neutral” toward religion under the standard established in Employment Division v. Smith and therefore targeted them for their religious beliefs. However, the Court concluded that the plaintiffs did not establish a lack of neutrality, and that the vaccine mandate did not “evince animosity towards particular religious practices or a desire to target religious objectors…because of their religious beliefs. Rather, they suggest that the State wanted more people to obtain the vaccine out of a deep concern for public health, which is a religion neutral government interest.”[22] Furthermore, the Court found the mandate to be “generally applicable” under the Smith standard, as it neither permits comparable secular conduct nor creates a “system of individualized exemptions.”[23]
Within the employment context, while plaintiffs claimed that § 2.61 was preempted by Title VII of the Civil Rights Act of 1964, the Court found that § 2.61 did not violate Title VII because, “although it bars an employer from granting a religious exemption from the vaccine requirement, it does not prevent employees from seeking a religious accommodation allowing them to continue working consistent with the Rule, while avoiding the vaccination requirement,”[24] agreeing with the State that employers could give religious objectors different assignments, such as telemedicine, in order to accommodate them without exposing other employees and patients to an infection risk.[25] The Court further noted that “Title VII does not require covered entities to provide the accommodation that Plaintiffs prefer—in this case, a blanket religious exemption allowing them to continue working at their current positions unvaccinated…Instead, an employer must offer a reasonable accommodation that does not cause the employer an undue hardship.”[26]
The Second Circuit also found that none of the plaintiffs were entitled to a preliminary injunction because they failed to prove irreparable harm or that public interest favored granting the injunction. While acknowledging the difficult decision and potential loss of employment for the plaintiffs stemming from the vaccine mandate, the Court noted that “adverse employment consequences are not the type of harm that usually warrants injunctive relief because economic harm resulting from employment actions is typically compensable with money damages.”[27] Furthermore, while again acknowledging the challenges faced by the plaintiffs if their religious convictions lead them to continue to refuse vaccination, the Court concluded that “such hardships are outweighed by the State’s interest in maintaining the safety within healthcare facilities during the pandemic.”[28]
In accordance with the Court’s ruling, as of November 22, 2021, all health care workers in the State of New York must have received their first vaccine dose, including those workers who once had a religious exemption, and those who do not comply may face the loss of their jobs.[29] While the plaintiffs/appellants in We the Patriots USA, Inc. v. Hochul applied to the U.S. Supreme Court for an emergency writ of injunction pending a decision on their petition for a writ of certiorari, .[30] on December 13, 2021 the Supreme Court declined to block the mandate while related litigation continued in lower courts.[31] The decision was in accord with an earlier ruling where the Supreme Court had denied a similar application for injunctive relief from healthcare workers opposing a vaccine mandate in Maine that, like the one at issue in New York, did not include a religious exemption.[32] In that case, the First Circuit had previously determined that the lack of religious exemption in Maine’s vaccine mandate for health care workers was not in violation of the First Amendment.[33]
The issue is also before the Supreme Court in connection with a November 2021 vaccine mandate issued by the Centers for Medicare & Medicaid Services (CMS) for all eligible staff in health care facilities participating in Medicare and Medicaid programs. Unlike the New York rule, the CMS mandate permitted religious exemptions and required health care facilities to “develop a similar process or plan for permitting exemptions in alignment with federal law.”[34] While it was, for a time, blocked nationwide on other grounds,[35] the Fifth Circuit Court of Appeals narrowed the injunction so that it would only apply in the twenty-five states currently involved in litigation against the Biden administration regarding the CMS mandate. As a result, CMS may now implement the mandate in the other twenty-five states, including New York and Maine.[36]
The Supreme Court will hear oral argument regarding the CMS vaccine mandate on January 7, 2022, with the arguments expected to focus on the limits of federal authority.[37] However, the outcome of the CMS case may still affect the status of state mandates that do not include religious exemptions, at least for Medicare and Medicaid-certified facilities, as the CMS mandate was intended to preempt inconsistent state and local laws regarding vaccine requirements.[38]
And as mentioned at the outset of this article, these outcomes may still not be the final word on COVID-19 vaccine related exemptions as a practical matter, given the range of health and medical accommodations that may be requested by employees impacted by the pandemic and deeply committed to not receiving the vaccine.
[1] “Section 12: Religious Discrimination.” U.S. Equal Employment Opportunity Commission, January 15, 2021. Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov)
[2] “Section 12: Religious Discrimination.” U.S. Equal Employment Opportunity Commission, January 15, 2021. Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov)
[3] “Section 12: Religious Discrimination.” U.S. Equal Employment Opportunity Commission, January 15, 2021. Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov)
[4] “Section 12: Religious Discrimination.” U.S. Equal Employment Opportunity Commission, January 15, 2021. Section 12: Religious Discrimination | U.S. Equal Employment Opportunity Commission (eeoc.gov)
[5] Sharon Otterman, “A judge says New York must allow religious exemptions, for now, to its health care worker vaccine mandate.” The New York Times, October 12, 2021. Judge Says N.Y. Must Allow Religious Exemptions to Vaccine Mandate – The New York Times (nytimes.com)
[6] 10 NY ADC 2.61. Section 2.61. Prevention of COVID-19 transmission by covered entities | Regulations | New York | Westlaw
[7] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *13 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[8] A. v. Hochul, 1:21-cv-10009, 2021 WL 473404, at *1 (N.D.N.Y. October 12, 2021). A. v. Hochul | Cases | New York | Westlaw
[9] Sharon Otterman, “A judge says New York must allow religious exemptions, for now, to its health care worker vaccine mandate.” The New York Times, October 12, 2021. Judge Says N.Y. Must Allow Religious Exemptions to Vaccine Mandate – The New York Times (nytimes.com)
[10] A. v. Hochul, 1:21-cv-10009, 2021 WL 473404, at *2 (N.D.N.Y. October 12, 2021). A. v. Hochul | Cases | New York | Westlaw
[11] Lauren Ban, “Federal appeals court denies New York healthcare workers religious exemption to COVID-19 vaccine mandate.” Jurist, November 1, 2021. Federal appeals court denies New York healthcare workers religious exemption to COVID-19 vaccine mandate – JURIST – News – Legal News & Commentary
[12] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *13 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[13] “COVID-19 Vaccines and Fetal Cell Lines.” Los Angeles County, April 20, 2021. VaccineDevelopment_FetalCellLines.pdf (lacounty.gov)
[14] “COVID-19 Vaccines and Fetal Cell Lines.” Los Angeles County, April 20, 2021. VaccineDevelopment_FetalCellLines.pdf (lacounty.gov)
[15] A. v. Hochul, 1:21-cv-10009, 2021 WL 4189533, at *1 (N.D.N.Y. September 14, 2021). A. v. Hochul | Cases | New York | Westlaw
[16] A. v. Hochul, 1:21-cv-10009, 2021 WL 473404, at *11 (N.D.N.Y. October 12, 2021). A. v. Hochul | Cases | New York | Westlaw
[17] A. v. Hochul, 1:21-cv-10009, 2021 WL 473404, at *10 (N.D.N.Y. October 12, 2021). A. v. Hochul | Cases | New York | Westlaw
[18] A. v. Hochul, 1:21-cv-10009, 2021 WL 473404, at *9 (N.D.N.Y. October 12, 2021). A. v. Hochul | Cases | New York | Westlaw
[19] Lauren Ban, “Federal appeals court denies New York healthcare workers religious exemption to COVID-19 vaccine mandate.” Jurist, November 1, 2021. Federal appeals court denies New York healthcare workers religious exemption to COVID-19 vaccine mandate – JURIST – News – Legal News & Commentary
[20] Rob Frehse, “New York state health care workers will no longer have religious exemption to Covid-19 vaccine mandate, court rules.” CNN, October 29, 2021. New York state health care workers will no longer have religious exemption to Covid-19 vaccine mandate, court rules – CNN
[21] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[22] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *11 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[23] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *11-15 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[24] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *17 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[25] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *17 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[26] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *17 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[27] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *19 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[28] We the Patriots USA, Inc. v. Hochul, Docket No. 21-2179, 2021 WL 5121983, at *20 (2d. Cir. Nov. 4, 2021). We The Patriots USA, Inc. v. Hochul | Cases | New York | Westlaw
[29] “Religious vaccination exemption ends for health care workers in New York.” Spectrum News 1, November 22, 2021. Religious vaccination exemption ends for health care in NY (spectrumlocalnews.com)
[30] “Emergency Application for Writ of Injunction Relief Requested by As Soon AS Possible.” Filed by Pattis & Smith LLC, Counsel for Applicants, on November 1, 2021. 20211102143010542_WTP_Emergency Application For Stay_final.pdf (supremecourt.gov)
[31] Andrew Chung, “U.S. Supreme Court rejects religious challenge to New York vaccine mandate.” Reuters, December 13, 2021. U.S. Supreme Court rejects religious challenge to New York vaccine mandate | Reuters
[32] John Does 1-3 v. Mills, No. 21A90, 2021 WL 502717 (S.C.O.T.U.S. October 29, 2021). Does 1–3 v. Mills | Cases | Supreme Ct. | Westlaw
[33] John Does 1-6 v. Mills, 16 F. 4th 20 (1st Cir. 2021) Does 1-6 v. Mills | Cases | Maine | Westlaw
[34] “Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers.” Centers for Medicare & Medicaid Services, November 4, 2021. Biden-Harris Administration Issues Emergency Regulation Requiring COVID-19 Vaccination for Health Care Workers | CMS
[35] “Court Blocks Healthcare Vaccine Mandate Across the Nation: A Game Plan for Healthcare Employers.” JDSupra, December 2, 2021. Court Blocks Healthcare Vaccine Mandate Across the Nation: A Game Plan for Healthcare Employers | Fisher Phillips – JDSupra
[36] Yvette Gatling, Sanjay Nair, David Dixon, and Laura Spector, “CMS COVID-19 Vaccination Mandate Back in 25 States.” Littler, December 16, 2021. CMS COVID-19 Vaccination Mandate Back in 25 States | Littler Mendelson P.C.
[37] Tierney Sneed, “The Supreme Court has upheld state and local vaccine mandates. That may not save Biden’s.” CNN, December 29, 2021. Vaccine mandates: Supreme Court has upheld state and local requirements. That may not save Biden’s. – CNNPolitics
[38] “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” Federal Register, November 5, 2021. Federal Register :: Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Helen D. Reavis who counsels both companies and individuals on employment matters. Ms. Reavis is admitted to practice law in New York. Attorney Advertising.