How Will the Religious Exemption to the Federal Employee COVID-19 Vaccine Mandate Work?

The federal government’s efforts to ensure that its workforce is fully protected from COVID-19, as employees return to the office amid the surge in Delta variant cases, have proceeded in fits and starts, culminating with President Biden’s September 9 executive order requiring “COVID-19 vaccination for all federal employees, subject to such exceptions as required by law.”

These exceptions will be for medical or religious reasons. The Centers for Disease Control and Prevention has not identified any “specific medical condition that would definitively bar a person” from being vaccinated, but neither has it confirmed the safety of the vaccine for persons with weakened immune systems or autoimmune conditions. Still, a person with a sound medical reason to avoid the COVID-19 vaccine will probably be exempt.

What about the religious exemption? Who is eligible to claim it, and under what circumstances is the claim likely to be accepted? The short answer is: almost anyone can claim it, but not many will receive it.

The Equal Employment Opportunity Commission has adopted guidance that prohibits discrimination—treating an employee differently—based upon “his or her religious beliefs.” Specifically, the guidance notes that it protects not only members of “traditional, organized religions,” but also “others who have sincerely held religious, ethical or moral beliefs.”

The scope of this protection is important, because that language is commonly used to define those who can claim the religious exemption.

Indeed, on September 16, the Safer Federal Workforce Task Force issued clarifying guidance on the vaccine mandate, including the exemptions. According to the task force, “an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 . . . because of a sincerely held religious belief, practice, or observance.”

To understand the principles involved in determining whether to grant religious exemptions, it’s important to recall the First Amendment to the U.S. Constitution, which, among other things, pronounces that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  It’s the “free exercise” and “religion” parts that are at play here.

None of the freedoms in the Bill of Rights is unlimited; they each have a point at which the right gives way. As we noted in a previous blog, in at least two earlier cases, the Supreme Court acknowledged the right to impose vaccination requirements on the general public. In the first, Jacobson v. Massachusetts (1905), the Supreme Court held that the states, acting under their police powers, could require individuals to be vaccinated against smallpox or face a fine. The other case—Zucht v. King (1922)—allowed states to require a smallpox vaccination as a condition to attend school. Confronting the argument often repeated today that a citizen has a right to decline a vaccine, Justice Oliver Wendell Holmes countered in the 1905 Jacobson case, “[My] right to swing my fist ends where the other man’s nose begins.”

Neither of those cases, though, involved a religious exception, which raises different concerns. While “freedom of religion” was one of the principles on which our country was founded, it also has its limits. In the 1878 case Reynolds v. United States, the Supreme Court rejected a claim of religious freedom and upheld a statute that criminalized bigamy. The high court held that:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

In the modern era, whether one has a right to refuse the COVID-19 vaccine because of a religious preference has been analyzed through several arguments. First, the analysis looks at whether a person is being asked to refrain from doing something that may be required by, or to do something that violates, their religious beliefs. In both cases, the courts try to determine whether the requirement is “neutral,” meaning whether it is being imposed in one way on the general public, but under different standards for certain religious groups. 

For example, in the 2020 case Roman Catholic Diocese of Brooklyn v. Andrew Cuomo, the Supreme Court overturned a New York state COVID-related attendance limit of 25 people at houses of worship because there was no such limit on secular businesses. While the vaccine mandate imposed on the federal workforce by the new executive order is imposed on everyone, it recognizes the religious exception, “required by law.” In fact, in August 2021, a court in Klaassen v. Trustees of Indiana University considered an appeal by students at Indiana University, who claimed that the university’s policies effectively forced them into taking the vaccine. Noting that the university’s mandate applied the same way to all students and allowed for a religious exemption, the court denied the claim.

Second, courts are beginning to look at whether the exemption is based on religion. In another August 2021 case— Harris and Cluett v. University of Massachusetts—a Catholic student claimed that her religious preference exempted her from the vaccine mandate. The court noted, however, that the school had confirmed that the Catholic Church declared the COVID-19 vaccine as “morally justified,” and the student had received other vaccines as a prerequisite to attending school. The court denied the exemption.

Finally—and this is perhaps the most critical—is balancing the right of employees to practice their faith against the possible consequences. In a decision in Prince v. Massachusetts from 1944, the Supreme Court held that, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” The EEOC’s guidance similarly provides that accommodating a religious belief may be an “undue hardship” if it “compromises workplace safety [or] infringes on the rights of other employees.”

The new Safer Federal Workforce Task Force guidance cautions that “determining whether an exception is legally required will include consideration of factors such as . . . the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.”

In sum, the new executive order allows federal employees to claim a religious exemption from the vaccine mandate, but that claim will be balanced against a perceived impact on the health of fellow employees. If the exemption is denied by the government, those employees will be able to seek review of that denial in court. In view of the above, however, employees will likely be confronted with the choice of agreeing to take the vaccine or seeking another job.

George Chuzi is a partner with Kalijarvi, Chuzi, Newman & Fitch PC. He represents both private and federal sector employees in court, as well as before the EEOC, the Office of Special Counsel and the Merit Systems Protection Board. He can be reached at gchuzi@kcnlaw.com.