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YOUR LEGAL RIGHTS | How easy is it to get a religious exemption to a vaccination mandate?

As I have noted in this space, private companies and government entities have the power to impose vaccine mandates. The seminal case on the issue, Jacobson v Massachusetts, was decided by the Supreme Court in 1905. But what about religious exemptions? I have answers.
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Attorney David Betras

As I have noted in this space a number of times, private companies and government entities have the power to impose vaccine mandates. 

The seminal case on the issue, Jacobson v Massachusetts, was decided by the Supreme Court in 1905. In the 116 years since, courts have repeatedly upheld the ruling and have also held that businesses have the right to establish and enforce conditions of employment, including requiring workers to roll up their sleeves.

The Jacobson precedent has withstood a torrent of challenges during the COVID-19 era. State and federal judges, including both liberal and conservative Supreme Court justices, have refused to block the imposition of mandates more than 40 times.  Faced with the cold stone reality that mandates are here to stay, a growing number of vaccine resisters are now seeking religious exemptions under Title VII of the Civil Rights Act of 1964 to avoid being jabbed. 

They are, to put it mildly, facing a steep uphill climb because while Title VII requires employers to make reasonable accommodations for employees who refuse to be vaccinated due to their sincerely held religious beliefs, this area of the law is extremely murky and riddled with exceptions. 

Workers who claim they are opposed to being vaccinated for faith-based reasons do start with one advantage, Title VII broadly defines religion to include “all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, 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.”

On the surface, this definition would appear to make things simple: an employee says they have a religious objection and an employer is obligated to make an accommodation that will enable them to work although they are unvaccinated.

But, as my regular readers know, there is simply nothing simple about the law.

First, an employer has the right to determine if a worker is truly sincere in their belief by asking about their church attendance and vaccination history. Failure to answer the questions or to answer them truthfully provides grounds for denial of the request for a religious exception and accommodation and could lead to termination. Just ask former Washington State University head football coach Nick Rolovich how that worked out for him.

Second, even if an employer believes a worker is sincere, they can refuse to make an accommodation if doing so would inflict undue hardship on the business. For example, United Airlines has argued that allowing unvaccinated employees to work in customer-facing jobs would place an undue burden on the company and the public so the airline is placing vaccine resisters on indefinite unpaid leave. 

This brings me to my third point: a reasonable accommodation is pretty much whatever the boss says it is. And, as United’s employees and thousands of others are learning every day, employers are becoming less and less tolerant and accommodating as they struggle to deal with the surge of the Delta variant — especially because the courts appear to be squarely in their corner. 

—  Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to news@mahoningmatters.com.


 
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