Sarasota, FL (WorkersCompensation.com) – An employee with a sincerely held religious belief may be exempt from a vaccine mandate. But how does an employer know if it’s really “sincerely held?” A healthcare system in Arkansas aims to find out.
The company has indicated there have been many more requests for religious exemptions to its coronavirus vaccine than it typically sees for its seasonal flu vaccine mandate, and has taken the somewhat unusual step of asking employees to affirm their beliefs. Some attorneys question the move, saying it could backfire on the organization.
Title VII of the Civil Rights Act of 1964 protects workers from discrimination on the basis of religion, among other things. The Equal Employment Opportunity Commission says employers must provide reasonable accommodations for workers who have sincerely held religious beliefs — unless doing so poses an undue hardship for the organization.
Conway Regional Health System in Arkansas is asking workers who request a religious exemption to the vaccine mandate to sign an attestation form – and verify they will also avoid taking at least 30 medications that pose the same issue of objection as the vaccines.
The objection stems from initial vaccine development that used fetal cell lines derived from two abortions performed several decades ago. Health experts say fetal cell lines have also been used in the creation of vaccines for other diseases, such as hepatitis A, rubella and rabies. However, the vaccines themselves do not include any aborted fetal cells. According to the health system, these fetal cell lines have also been used in developing a plethora of common medications, such as Tylenol, aspirin, Tums, Lipitor, Ex-Lax, Maalox, Claritin and many others.
In weighing the morality of using the vaccines, the Vatican issued a statement last year, essentially giving its OK.
“All vaccinations recognized as clinically safe and effective can be used in good conscience with the certain knowledge that the use of such vaccines does not constitute formal cooperation with the abortion from which the cells used in production of the vaccines derive,” it said. “It should be emphasized, however, that the morally licit use of these types of vaccines, in the particular conditions that make it so, does not in itself constitute a legitimation, even indirect, of the practice of abortion, and necessarily assumes the opposition to this practice by those who make use of these vaccines.”
Conway developed the attestation form in August for those employees seeking religious exemptions based on the fetal cell objection. “This will help to validate your understanding of the ubiquity of fetal cell use in the testing and development of common medicines and consumer products and support your claim of a ‘sincerely held belief,’” the form reads. It includes a list of 30 medications “that have used fetal cells in their development,” and asks the employee to not use them. Finally, it advises that employees who are unvaccinated will undergo periodic testing and may be reassigned to other positions to protect patients and other staff.
The situation blew up on social media shortly after the organization began asking employees to sign the form. In response to questioning by various media outlets, the health system’s president and CEO said the idea of the form was to ensure the employees requesting the exemption are sincere in their belief and to educate staff who might not understand the full scope of how fetal cells are used in testing and developing common medicines. He said the intent was not meant to shame the employees.
Matt Troup was also quoted as saying that any employee who declines to sign the attestation form would be granted the religious exemption on a provision basis, but may again be asked to sign the form at a later date and may not be entitled to provisional status in the future due to changes in the pandemic.
Attorneys Weigh In
Determining whether an employee actually has a “sincerely held” religious belief can be a tough road to hoe, say several attorneys. They point out the issue is anything but clear cut.
“I understand that the CEO said ‘we just want people to understand what they’re saying,’” said Chuck Kable, chief Legal and HR Officer for Axiom Medical. “I think from a legal perspective, courts have been very clear: ‘it’s not for us to determine what’s plausible.’ Even a mistaken belief can fit in this category, as long as it’s sincerely held. I wonder, worry it could become a problematic approach to take.”
Kable points out that attacking someone’s religious beliefs sends a message that the employer doesn’t trust its employees. Also, he says “it’s too hard to police, too hard to enforce at the end of the day.”
Kable suggests employers instead focus on an “undue hardship” analysis.
Several other attorneys contacted were unwilling to share their thoughts publicly.
“This is too political or a hot potato,” said one, “but wow.”
One legal firm suggested employers with concerns engage the employee in the interactive process to determine if the religious belief is indeed “sincerely held.”
“Once it is established that an employee has a religious belief that is protected by Title VII, courts have routinely found that it is impermissible for an employer to question the validity of that religious belief,” wrote Fischer Phillips in a recent blogpost. “It also does not matter that an employee’s religious denomination or leaders do not follow or endorse the employee’s particular belief. Nor does an employee have to prove the religious practice or belief is an express requirement of the employee’s religion”
The authors also pointed out that an employee’s religious belief may not necessarily reflect his past actions.
“Courts have held that such evidence can be overcome because sincerely held religious beliefs can, and often do, change over time,” they wrote. “Such cases demonstrate that even if an employee is not diligent in their observance or did not openly profess their beliefs in the past, their religious beliefs are protected by Title VII nonetheless.”