Lawyers Expect Lawsuits As Employers Navigate "Touchy" Subject Of Religious Objections To Vaccines

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by Tyler Durden
Friday, Aug 13, 2021 - 07:30 PM

Now that the Biden Administration has outsourced the responsibility for enforcing America's vaccine mandate to individual employers (who for millions of Americans control access to health-care, income, and a sense of self-worth), legal experts expect companies to struggle with "touchy" subjects like workers with legitimate religious objections to vaccination, especially as workers increasingly demand to continue working from home.

Recently, the band the Offspring made headlines when it announced that its drummer, who had decided not to get the vaccine for legitimate medical issues, wouldn't be joining the rest of the band during an upcoming tour. The drummer explained in a statement that he had Guillain Barre syndrome when he was a child, and didn't want to risk trigger rare blood clots which are a documented side effect of the vaccine, making it unsuitable for certain high risk patients.

And has large tech companies like Google and Microsoft are joined by banks, airlines (or at least one airline), Tyson Foods and others, many managers are finding it difficult to navigate an area where Americans have traditionally enjoyed many liberties: their religious preferences.

Reuters reports that while the Equal Employment  Opportunity Commission made an exemption in its vaccine rules for religious exemptions, it's likely this right too will be steamrolled in practice.

And given the obvious conflict, it's almost guaranteed that unlawful termination and discrimination lawsuits will emerge in the coming months as those who refuse to get the vaccine face every conceivable means of coercion.

As one lawyer put it, "it's a touchy subject."

"It's such a touchy subject for both sides," said Erin McLaughlin, a Buchanan Ingersoll & Rooney lawyer who advises large employers.

"This issue has moved to the forefront as we see more and more mandatory vaccination policies," she said. She said there had been more regulator guidance on exemptions for disabilities than religious beliefs, adding to the challenge as companies draft vaccine policies.

In the past, US courts ruled that veganism counted as a religious belief so far as it justified one nurse's decision to refuse a flu shot, which led to her termination back in 2010.

Cincinnati Children's Hospital Medical Center fired customer service representative Sakile Chenzira in 2010 for refusing a flu vaccine because she was a vegan. Chenzira sued and the hospital wanted the case dismissed, arguing she was mistaking a dietary habit for a religious belief. The federal judge ruled in her favor based on the sincerity of her views. The parties settled privately.

"As an employer, you can inquire whether an employee has a sincerely held religious belief. It's just kind of a fraught investigation," said Brian Dean Abramson, an author and specialist in vaccine law.

But the vegan loophole likely won't be tolerated this time around, despite the EEOC's broad definition of religion.

The standard of "undue burden" means businesses must accommodate religious beliefs unless it poses an "undue burden", either financially or in terms of safety.

In other words, those who refuse the vaccine will need to submit to weekly testing and constant masking. Should they fail to keep up with either, they could be at risk for termination.

Burgo said businesses should assume that employees seeking an exemption sincerely hold their beliefs. She said the bigger challenge can be accommodating those exemptions which the employer can refuse if it results in an "undue burden" on workplace safety and efficiency.

Brett Horvath cited religious beliefs when he refused a tetanus, diphtheria, and pertussis vaccine in 2016 that was required by the City of Leander Fire Department in Texas where he worked as a driver and pump operator.

The department gave him a choice. Instead of being vaccinated, he could wear a mask and submit to testing or switch to a job in code enforcement with hours that were less convenient. He refused and was fired.

He sued and last year the 5th Circuit U.S. Court of Appeals upheld the dismissal, finding the face mask requirement accommodated his religion while allowing him to perform his job.

Employees who push to work from home to better accommodate their situation will simply force a reluctant employer to come up with a reason why the employees' presence at the office is essential.

But employees may also demand to work from home, creating a challenge for reluctant employers to explain why mandatory in-person attendance is essential after months of remote work.

"There will be a few employers who get it wrong before we get through the process to get pretty good established guidance on how to handle this, especially with vaccines," said McLaughlin, the lawyer for large employers.

As more cities follow NYC's lead of requiring proof of vaccination to dine in restaurants and go to the gym, those with religious exemptions to the vaccine shouldn't expect any special treatment, which is of course by design.