In this episode of the Employee Survival Guide, Mark explores the murky waters currently surrounding many unvaccinated employees, the vaccine mandate and their religious convictions. Mark asks the tough questions, including should employers control their employee’s religious faith. Dive in, the discussion is complex and involves everyone who believes in the First Amendment and religious freedom.
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Transcript:
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Hey, it’s Mark here and welcome to the next edition of the Employee Survival Guide podcast. Today’s edition we’re gonna talk about, take this vaccine and shove it. Should employers get to decide what their employees believe? In a 1978 hit song, take this job and shove it. country singer David Koepp writes about his bitter woes of a worker who was finally able to leave a terrible job and put his unjust employer in his place. In recent weeks, a lot of employees who want to keep their jobs are nonetheless telling their bosses when it comes to the COVID 19 vaccine, they should take this vaccine and shove it. Unfortunately, many employers replying in vain with a Rachel song hit the road jack. In recent months, a new dynamic has emerged in the American workplace, which raises perplexing questions about the meaning of religious freedoms and the right of employers to determine what exactly that freedom means for their employees. As a Delta variant of the COVID-19 virus rages through the country, causing ever increasing levels of illness, hospitalizations, and death, more and more employers requiring their employees to get COVID 19 vaccinations in order to continue their employment. We recently posted an article announcing President Biden’s September 9 2021 sweeping executive order requiring vaccination of all federal employees and many contractors and also private firms above 100 employees. The scope of these government and private mandates are quite broad. These decisions will affect millions of American workers. It seems the issue is now ripe for debate. Some mandates like President Biden’s provides an alternative of testing and masking. In the event that no federal worker has either sincerely held religious beliefs or medical conditions that prohibit vaccination. CNN business recently reported that United Airlines has implemented a tougher vaccine mandate that requires any employee seeking religious or medical exemption from the vaccine to be placed on an indefinite pay on unpaid leave of absence if they receive an exemption. While you know claims to be attempting to accommodate its workers sincerely held religious belief, it appears as though anyone requesting one is at serious risk of losing their livelihood. Each day in my employment law practice I receive calls for employees at all sizes and types of companies who are facing dire and life changing decisions, should they get a vaccine that they do not believe is safe or effective? Should they get the vaccine even if it violates their spiritual beliefs? How can they be forced to decide between their livelihood in their faith in a country that was founded on the principle that we can believe as they choose? Perhaps the most consequential decision facing these those with deep spiritual convictions on the subject is how can they improve the sincerity of their religious beliefs? The questions are no less perplexing for employers in most major religious organizations in united states allow their members to receive vaccines. Why are so many claiming religious exemptions? If the most credible scientific evidence indicates the vaccine is safe and effective? And it does? How can they operate the business safely in the midst of the pandemic without requiring anyone, everyone to be vaccinated? How can they determine whether an employee’s restated religious beliefs are sincerely held the sincerely held mean and in line with the Orthodox meanings of a particular church? What about the unorthodox teachings of an online church from a relatively unknown faith? If the belief can be whatever an individual claims it to be? How do we know the exemption is not being abused? What if large numbers of workers claimed the religious exemption? How can we keep employees and customers safe? What many of my clients are experiencing is that they are applying for religious exemptions from the COVID vaccine and their employers are unilaterally denying them. In some cases the employer establish establishes standards of proof of spiritual belief in question that are difficult or impossible to meet. When faced with a strong case for sincerely held religious exemption. Employers are responding with draconian requirements for the exempt including complete isolation in the workplace, for the unvaccinated or full body PPV and face shields as well as masks. Often these requirements are more extreme than the protocols in place at workplaces before the vaccine was implemented. Isn’t this a form of retaliation for one’s religious beliefs? The United Airlines decision reflects this trend, medical exemptions are treated as more legitimate than religious exemptions. Although united is granting accommodations for employees who have a valid medical or religious reason not to get vaccinated. It disclosed this week that there would be cost for those who cite their their religious belief as a reason for not to be vaccinated. United and other employers are officially stating that they are deciding on religious exemptions on a case by case basis. But the reality is that the religious exemptions in general are being treated much more skeptically than medical exemptions. Is this heightened scrutiny appropriate is it legal? The problem is a difficult one. If the individual employee gets to decide on the sincerity of their religious beliefs, then rampant abuse of the exemption is likely. Anyone who does not want the vaccine for any reason may claim their religious beliefs prohibit them from getting it. If the employer gets to decide on the sincerity of the employee’s religious belief, then the exemption will be meaningless. The recent United Airlines policy as well as my daily call sheet indicates that the latter result is prevailing at the moment. Employers are overwhelmingly deciding that religious exemptions are not legitimate. While the questions surrounding mandatory vaccinations are murky, the law is clear. The US Equal Employment Opportunity Commission, the EEOC has provided guidance on the subject. The country’s leading employment rights authority, advises employers that while they can impose vaccine mandates on their employers or employees, they should not dispute the religious objections in most cases, the sincerity of the employee’s belief must be, quote, generally presumed or easily established, and, quote, The guidance has been widely ignored. The Americans with Disabilities Act, the ADA protects persons with disabling medical conditions from the mandates, if that condition would be affected adversely by the vaccine. Likewise, title seven of the Civil Rights Act of 1964. Title seven provides that reasonable accommodations to be granted if one’s deeply held religious beliefs prohibit vaccination. While the majority of religious organizations in the US do not oppose vaccine, the right to determine one’s personal spiritual beliefs and what God and what one’s God requires is at the heart of the freedom of religion as defined in the First Amendment to the US Constitution. Do I have a freedom of religion if the beliefs I may hold are determined by a corporate approved list of acceptable religion, religions and belief systems. Some will say that losing one’s job is a small price to pay for one’s religious convictions, and that those with strong objections may just go work elsewhere. This is the continuing fallacy of the employment at will rule. employees may face long term unemployment or career devastation for leaving a job at the height of the pandemic. With the government and private employers piling on to the vaccine mandate bandwagon. Were exactly the religious unvaccinated going to work is it permissible for an employer to deny a position to an otherwise qualified job candidate because their religious beliefs prevent vaccination. Additionally, unemployment benefits are often denied to those who leave a job because we rejected religious exemption. In my view, title seven the ADA, the EEOC guidelines and the First Amendment are fairly clear. If low costs and reasonable alternatives such as masking, distancing, pp, and testing are sufficient to keep the workplace safe while accommodating the religious exemptions, then those accommodations should be granted with little if any scrutiny of the employee’s beliefs, employers should be much more hesitant to terminate or suspend employees who have strong spiritual beliefs about a vaccination. These protections provided by the by the law are fundamental to an American’s right to determine one’s own spiritual beliefs. While some abuses will inevitably occur, we should err on the side of protecting individual freedoms, unless there are no reasonable alternatives. In the case of the coveted vaccine, reasonable alternatives exist. The Wall Street Journal reported an opinion piece on September 30 2021, that provides a deeper understanding of the legal complexity. The Biden vaccine mandate is worth reading to get a fuller picture of the constitutionality of the emergency standard authorization given by given to OSHA, the Occupational Safety and Health Administration. As illustrated by the United Airlines mandate, the laws that protect an individual’s religious freedoms are being widely and flagrantly ignored by both private and public employers only when individuals begin to bring legal action to protect their rights. Well, these issues be fully and fairly resolved in our courts. Employees are being denied religious exemptions from the COVID vaccine, or who are being told not to apply for one because their church does not prohibit the vaccine should consult an employment attorney as soon as possible. To protect our right to religious freedom. We must assert those rights whenever they are in jeopardy. If you enjoy this podcast please contact Carey & Associates PC n the web at info@capclaw.com and have a great week.