As the Delta and other Greek-lettered variants plague our world, many employers are mandating, or considering mandatory COVID19 vaccinations for their employees. Indeed, some groups are advocating for COVID19 vaccine mandates, such as the Center for American Progress, which recently wrote that the Centers for Medicare and Medicaid Services (CMS) should make COVID19 vaccines for health organization employees a condition of participation or condition for coverage under the federal Medicare and Medicaid programs. And fifty medical groups have called for mandatory vaccinations in hospitals.
Further, as noted in previous blog posts, the Equal Employment Opportunity Commission (EEOC) has given the green light on such employer mandates, as long as employers continue to comply with civil rights laws, such as Title VII and the Americans with Disabilities Act (ADA). Specifically, employers should reasonably accommodate requests for exemption from the COVID19 vaccine for disability-related issues under the ADA, or sincerely held religious beliefs under Title VII, unless such accommodation would cause the employer an “undue hardship.”
Employees in turn are opposing these employer mandates by requesting a religious exemption. Some of those religious exemption requests cite an association between the COVID19 vaccine and aborted fetal cell lines. For example, in a recent cease and desist letter from Liberty Counsel to Advocate Health Care, Liberty Counsel (a nonprofit ministry and law firm) argues that all three currently available COVID19 vaccines are “produced by, derived from, manufactured with, tested on, developed with or otherwise connected to or ‘associated’ with aborted fetal cell lines.” The letter goes on to proclaim that many employees of Advocate Aurora have “sincerely held religious beliefs that because life is sacred from the moment of conception and abortion is the murder of an innocent human in violation of Scripture.” As a result, those who hold such religious beliefs are against taking the COVID19 vaccine and should be protected from religious discrimination.
Interestingly, some employees who are opposed to the COVID19 vaccine have received other vaccines, such as the flu vaccine, which many health care employers also mandate. See e.g., https://www.msn.com/en-us/health/medical/some-nurses-willing-to-pay-hefty-price-to-not-get-covid-19-vaccine/ar-AANwwaw?ocid=uxbndlbing. It is noteworthy that many vaccines that pre-date the COVID19 vaccine are developed from fetal cell lines. Thus, employers that face resistance from employees because of COVID19 vaccine development using fetal cell lines can point to the fact that other common vaccines are developed the same way. Moreover, religious leaders, including the Pope, have blessed the use of vaccines.
Pre-COVID19 Lawsuits May Provide Guidance as to What is a “Sincere Religious Belief”
One case that might be useful to employers when considering what qualifies as a sincere religious belief is Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania. The case is from 2017, so pre-pandemic. Paul Fallon worked at Mercy Catholic Medical Center as a Psychiatric Crisis Intake Worker and in 2012, his employer began requiring all employees to obtain a flu shot. Employees who were granted an exemption due to medical or religious reasons were required to wear a mask as an accommodation. Mr. Fallon did not belong to any religious organization, but he held strong personal beliefs about opposing the flu vaccine. To support his opposition, Mr. Fallon wrote an essay describing his sincerely held beliefs. Despite his employer’s request, Mr. Fallon did not request a letter form a clergyperson to support his request. As a result, Mercy Catholic terminated him for failing to comply with the flu vaccine requirement.
Mr. Fallon sued, and the case went all the way to the federal third circuit court of appeals. The court examined Mr. Fallon’s belief that the flu vaccine may do more harm than good and that one should not harm their own body. Mr. Fallon argued that his belief was religious in nature. The court evaluated whether Mr. Fallon’s belief about the flu vaccine warranted protection from Title VII and quoted the following definition of religion:
First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.[1]
Upon review of Mr. Fallon’s belief about the flu vaccine, it concluded that his belief does not address fundamental and ultimate questions having to do with deep and imponderable matters. Instead, his belief was an “isolated moral teaching.” The court also noted that Mr. Fallon’s belief was not manifested in formal and external signs, such as “formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.”[2]
Although the court acknowledged that anti-vaccination beliefs could be part of a broader religious faith, in which case those beliefs would be protected under Title VII. But Mr. Fallon’s belief fell short.
Lesson from the Fallon Case
What can be learned from the Fallon case? First, employers who impose vaccine mandates can ask for support of a person’s religious belief. Although the EEOC recommends that employers give an employee’s belief the benefit of the doubt, that doesn’t mean employers can’t ask for support, such as from clergy.
Second, an anti-vaccination belief grounded in religion should be part of a comprehensive system of beliefs that are fundamental to the person’s life. Any employee who requests a religious exemption from the COVID19 vaccine should not have received any other type of vaccine in the past, and if they have, they should explain (or have a religious leader explain) the difference between them from a religious perspective. Political beliefs do not qualify as religious beliefs.
Create Policies to Mitigate Risk
No matter what an employer decides regarding mandating the COVID19 vaccine, there is a good chance that employees will be at odds with one another when it comes to vaccination and/or other COVID19 safety measures, such as mask wearing. Some companies, like Fox News, are requiring employees to disclose their vaccination status (which according to the EEOC, is not disclosing confidential health information protected by the ADA when the vaccine is administered by a third party).
To mitigate employee feuds, employers should adopt policies about how to handle tension between employees regarding COVID19 beliefs, vaccination status or mask wearing. The policies should guide employees about making complaints or voicing concerns when confronted with a situation that makes the employee uncomfortable or angry. Creating procedures for handling disagreements between employees may help calm disputes and foster a more cooperative work environment, which will also reduce employee stress and anxiety. Employers should work with their legal counsel when drafting such policies and procedures. Attorneys from the Center for Health and Wellness Law are ready to help.
[1] Fallon v. Mercy Catholic Medical Center, Case No. 16-3583 (Dec. 14, 2017) (citing Africa v. Commonwealth of Pennsylvania, 662 F.2d. 1025, 1032 (3d. Cir. 1981)).
[2] Id.