Articles

Legality of Mandated Vaccinations

November, 2021

EMPLOYER-MANDATED COVID VACCINATIONS-

IS IT LEGAL?

A number of employers, especially in the health care sector and public safety, are implementing policies that give their employees a choice:  either get the COVID-19 vaccination or face administrative leave without pay or termination.

What has been the legal experience of challenges to mandated vaccination policies, either by private employers or government?  Not good.  And there’s a long history of such challenges failing in favor of the protection of public safety and the welfare of the public.

As far back as 1905, a challenge to Massachusetts compulsory vaccination policy to eradicate smallpox was rejected by the U.S. Supreme Court.  Jacobsen v. Massachusetts, 197 U.S. 11 (1905).  The Court stated the right of individual liberty is not absolute and is subject to the police power of the state.

But there are examples of authorized objections to COVID-19 vaccine mandates that are lawful.

With proper documentation, exemptions are lawful for a medical exemption to the vaccine.

On October 25, 2021, the Equal Employment Opportunity Commission, (“EEOC”), issued new regulations covering another type of vaccine exemption:  religious objection to COVID-19 vaccine mandates under Title VII.  EEOC’s regulations are usually adopted or incorporated into state anti-discrimination statutes and regulations, such as Connecticut.

Title VII prohibits employment discrimination based on religion.  This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances.  If an employer shows that it cannot reasonably accommodate and employee’s beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.

Here a few points explained in the regulations covering such religious objection:

1. Employees must tell their employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.Employers do not have to accept an employee’s assertion of religious objection at face value.

2. An employer must “an objective basis for questioning the religious nature or the sincerity of a particular belief.”  Such employer is justified in “making a limited factual inquiry and seeking additional supporting information.”  The employee must cooperate.

3. Since Title VII protects nontraditional beliefs that may be unfamiliar to employers, employees may be asked to explain the religious nature of their belief and should not assume the employer already knows or understands it.  Title VII does not protect social, political, or economic views or personal preferences.

4. The employee’s sincerity in holding a religious belief, “largely a matter of individual credibility.”  Factors to consider include:

• Whether the employee has acted in a manner inconsistent with the professed belief;
• Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
• Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons;
• Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

• The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.

• An employer must show that it would be an “undue hardship” to accommodate the employee’s request for religious accommodation.

5. The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or minimal, cost to accommodate the employee’s religious belief is an undue hardship.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business, including the risk of the spread of COVID-19 to other employees or the public.

Courts have found Title VII undue hardship where the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

6. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.

7. An employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

In the latest example of courts supporting public safety over religious exemption, the Supreme Court denied an application for injunctive relief based upon a religious exemption to Maine’s new regulation requiring health care workers to receive COVID-19 vaccinations or face termination.  Doe v. Mills, 2021 U.S. Lexis 5350 (October 29, 2021).