Dispatches from a Pandemic: The debate over mandatory COVID-19 vaccines has shifted to legal wrangling over ‘sincerely held beliefs’

First came the disputes whether employers are allowed to fire workers refusing COVID-19 vaccination.

Now comes the fights on who gets religious exemptions when vaccination mandates kick in — and what counts as fair treatment for people even after they get the accommodation.

Even in the best of times, it’s a drama that mixes science, religion and law. Now set this against the pandemic and the debate on the balance between a person’s faith and public health takes a new urgency, observers say.

Washington State University’s head football coach Nick Rolovich became a prominent example Monday night.

“Washington University said it was parting ways with its head football coach because he did not meet the state’s vaccination deadline.”

Two years into a $15.6 million contract with the public university, Rolovich sought a religious exemption to Washington’s vaccination requirement for state workers. Rolovich was raised Catholic, according to USA Today, but the coach declined to publicly say that’s his faith.

The university said it was parting ways with Rolovich because he did not meet the state’s Oct. 18 vaccination deadline. A university committee initially approved the exemption, but the school’s athletic director rejected it, according to The New York Times.

Privacy laws barred a university spokesman from discussing Rolovich’s case with MarketWatch. As of Tuesday, the university granted 98 religious exemption requests.

Rolovich sounded hopeful days earlier. “I believe it’s going to work out the right way,” he said during a Saturday press conference following WSU’s win over rival Stanford University

Away from the football field, employers and employees in all kinds of jobs are grappling with what’s in and out of bounds for these exemptions.

Nick Rolovich, Washington State University’s former head coach, pictured in a December 2020 game.

Getty Images

Trader Joe’s lawsuit

Gregg Crawford, a devout evangelical Christian, received an exemption from Trader Joe’s COVID-19 vaccine mandate for workers.

That was the beginning of the end for the California man’s 26-year career at the grocery store, his lawsuit alleges.

In his early 60s and nearing retirement, Crawford learned after his July exemption that an upcoming leaders meeting in North Carolina would be for vaccinated staff only, his lawsuit states. Crawford’s absence would harm his performance review, according to a regional manager who said he was just relaying the news, it adds.

Crawford got a lawyer involved, who told upper management there had to be a way for his bosses to arrange Crawford’s in-person or virtual presence. Otherwise, Crawford was being put at a disadvantage because of his beliefs, his attorney said in the Central District of California filing.

Trader Joe’s general counsel responded that Crawford would receive a summary of the meeting and his vaccination status would “of course” not form the basis for a bad review, the lawsuit said.

Days later, Crawford said he was told he was being fired. Among other reasons, Crawford allegedly ignored an open-door policy when he brought in a lawyer to air his grievance.

“They gave him the accommodation, but then they made it impossible for him to meet his job expectation afterwards,” said Ronald Hackenberg, Crawford’s attorney.

Trader Joe’s did not respond to requests for comment.

United Airlines lawsuit

Hackenberg, a staff attorney with the Pacific Justice Institute, said the religious legal advocacy organization has been swamped with calls from potential clients.

The allegations often boil down to “employers that are not going through the process, not sincerely attempting to accommodate these people, either denying exemptions or ‘okay, we grant your exemption. Our accommodation is you go home without pay.’”

That’s one part of the pending lawsuit some United Airlines

workers filed against a carrier that’s obtained a 99.7% vaccination rate through its mandate.

The workers — including a Catholic employee who views the vaccine as “contrary to the Bible’s teaching that her body is a temple of the Holy Spirit” — said they received a religious exemption, but also unpaid leave for an indefinite time amount.

That’s basically getting fired, their Texas federal court lawsuit alleged. Lawyers for United and the workers initially agreed to a brief pause on unpaid leave placements and last week, a Judge Mark Pittman extended the block on unpaid leave through late October.

“Vaccine requirements work and nearly all of United’s U.S. employees have chosen to get a shot,” a United spokeswoman said. “For a number of our employees who were approved for an accommodation, we’re working to put options in place that reduce the risk to their health and safety, including new testing regimens, temporary job reassignments and masking protocols.”

Approximately 2,000 workers have received medical or religious exemptions, she said. Separately, 232 workers are facing termination for refusing to get their shots, she added.

‘It’s really murky’

The pandemic has stirred strong emotion, but when it comes to faith-based exceptions to workplace vaccine requirements, the key issue is a person’s “sincerely held religious belief, practice, or observance,” according to the Equal Employment Opportunity Commission.

When employers learn a worker will not get vaccinated due to this belief, they “must provide a reasonable accommodation unless it would pose an undue hardship.”

Sounds challenging, right? It gets trickier.

What counts as “religion” in employment law can be “broad,” the EEOC says. As a result, employers should assume the accommodation request is genuine — that is, unless the employer is aware of facts that could supply “an objective basis for questioning either the religious nature or the sincerity of a particular belief.”

“‘Nobody wants to be in a position to question or interrogate someone’s sincerely held belief.’”

— Valerie Gutmann Koch, co-director of the University of Houston Law Center’s Health Law & Policy Institute

Decades of caselaw and guidance about vaccines and religious exemptions don’t make the task any easier for companies, according to Professor Valerie Gutmann Koch, co-director of the University of Houston Law Center’s Health Law & Policy Institute.

“It’s really murky. It’s very difficult for employers to do this,” she said, later adding, “Nobody wants to be in a position to question or interrogate someone’s sincerely held belief.”

Workers and employers have fought over the issue in the past, like upheld flu-shot rules for health-care employers. “It feels more real to more of our population than it has in the past, and the stakes feel higher,” she noted.

Another new twist is the changing composition of the courts, starting at the U.S. Supreme Court. Religious freedom has always had a core place in case, but Koch said “we are seeing that balance shifting a bit so religious liberty is taking a more significant place.”

Some pending cases are challenging the absence of religious exemption rules on mandates for health-care workers, like one in New York. There, a federal judge sided with 17 healthcare workers who challenged the state COVID-19 vaccination mandates for healthcare workers, which eliminated a religious exemption.

New York is appealing to the Second Circuit Court of Appeals and cases like these might one day tee up a fresh look at religious exemption from the high court, Koch said.

‘Reasonably accommodating’

How many religious exemptions are we even talking about?

Such medical and religious exemption requests hovered in the low single digits when companies require vaccination, according to a majority of companies in a survey by Mercer, the human resources consulting firm.

“There’s no threat to herd immunity presented by these sincere objections,” said Peter Breen, vice president and senior counsel at the Thomas More Society, the legal-advocacy organization representing the healthcare worker rules fighting New York State’s rules.

The organization has been “deluged with thousands of requests” for assistance, he said. “Most employers are reasonably accommodating those who have objections.” Lawsuits show the flash points, Breen added, “but we are, for the most part, successful in helping people secure accommodations.”

“‘A Catholic may judge it right or wrong to receive certain vaccines for a variety of reasons.’”

— Peter Breen, vice president and senior counsel at the Thomas More Society

In the big picture, Koch agrees the exemptions might be a small number — but specifics on who’s getting an exemption and what job duties they have are always important, she said.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and President Joe Biden’s chief medical adviser, said earlier this month there’s “very, very few, literally less than a handful” of established religions against vaccination.

But it gets complicated. For example, Pope Francis has said “getting the vaccines that are authorized by the respective authorities is an act of love.”

But Breen, who is Catholic himself, says there are differing opinions inside the church. His organization is representing an anonymous pediatrics doctor, a Catholic woman with a master’s degree in Catholic bioethics, and a medical student who is Buddhist.

The University of Colorado’s medical school denied exemption requests for both of them and now they are suing in Colorado federal court, saying administrators were taking a “foray into theology.”

Lawyers for the school noted both plaintiffs acknowledged getting other vaccines in the past. They wrote in court papers that the doctor “did not articulate an individualized Catholic belief different from the views of the Vatican doctrinal office or the U.S. Conference of Catholic Bishops, which have come out strongly in favor of vaccination against COVID-19.”

For Breen, the filing “proved our case they have taken on theological issues.” He noted an open letter from Catholic bishops in Colorado. There, the religious leaders wrote “a Catholic may judge it right or wrong to receive certain vaccines for a variety of reasons, and there is no Church law or rule that obligates a Catholic to receive a vaccine — including COVID-19 vaccines.”

For the medical school, however, it’s a defense of a key policy at a critical moment.
“Each year, School of Medicine faculty members provide care for more than 2 million patients and our mandatory vaccination requirement offers the best way to protect the patients in their care,” a spokesman said.

“We have adopted this policy in recognition of our responsibility to provide public-health leadership in our state and beyond,” he added.

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