Many workers are turning to religious exemptions to avoid vaccine mandates. But it's not a simple solution for them or their employers.
Sophie Carson
Wisconsin residents unwilling to get vaccinated under their employers’ COVID-19 vaccine mandates are requesting religious exemptions in growing numbers and flocking to lawyers for help.
Short of quitting, the process is the only avenue available to vaccine-resistant employees who can't get a medical exemption.
But it's not a simple solution for them or their employers, who face a challenging tradeoff as they try to follow a broad federal law banning religious discrimination.
In the past, “once you threw religion on the table, employers have kind of backed away,” said Carrie Hoffman, a Dallas-based partner with Foley & Lardner’s labor and employment group.
Now, though, especially as President Joe Biden's new vaccine mandate is set to affect as many as 100 million people, companies must balance the health and safety of the workplace with the religious liberty of individual workers — and the risk of getting sued if they don’t.
The issue of whose requests to approve and whose to deny is complicated. How does someone demonstrate their religious belief against vaccines is “sincerely held,” as the law puts it? And how far can an employer question someone about their beliefs?
Milwaukee-area employment discrimination attorneys say they’re being flooded with calls asking for advice. In the cases they do take, they’re brokering compromises between employers and unvaccinated workers.
Those who won’t get the shot might have to wear a mask, get tested regularly or work from home, for example. And if accommodations can’t be made, workers might be fired or put on unpaid leave.
Letters from clergy not the answer
Nationally, demand for religious exemptions has surged. Some workforces have sought them in large numbers, including about 2,600 Los Angeles Police Department employees and more than 3,800 Washington state workers, according to the Associated Press.
And while letters from clergy are not required in the exemption process, some leaders online are offering to attest to the faithfulness of people they have never met — in exchange for a donation. One pastor and Republican Senate candidate in Oklahoma said his form has been downloaded tens of thousands of times, the Washington Post reported.
Certain people of faith are morally opposed to the use of fetal cell lines from abortions that occurred decades ago in the development or testing of some vaccines.
For others, the issue is rooted more in politics than in theology, some faith leaders argue.
It’s up to employers to decide whether workers' beliefs are “sincerely held,” per Title VII of the 1964 Civil Rights Act — and what documentation people must provide to prove it.
“You can't just say, ‘Oh, God doesn't want me to get the vaccine,’” said Nola J. Hitchcock Cross of Cross Law Firm in Milwaukee.
Employers are asking people to elaborate: what’s your belief exactly and why doesn’t it allow you to get the vaccine?
All major religions do approve of the COVID-19 vaccine, and even the Christian Science Church — which generally favors prayer over medical treatment — has not disavowed it.
Still, one’s sincerely held belief doesn’t have to align with an organized religion.
That’s why employers cannot require letters from clergy vouching for their church members, under federal law.
The issue is popping up locally. The Wisconsin Institute for Law and Liberty last month sent a letter to the Mequon-Thiensville School District after it required a signature from a religious leader or institution for any religious exemptions or accommodations to its mask mandate.
“You're allowed to have a sincerely held religious belief where you're the only person in the world who believes it,” said Dan Lennington, deputy counsel at WILL. “Our Constitution doesn’t require a permission slip from a priest or a pastor.”
Employers weigh how far to question workers' beliefs
Employers are cautiously figuring out how much they can ask about a worker’s religious faith if they’re skeptical of the request, experts said.
It’s been a challenge to distinguish religious beliefs from personal feelings and opinions about vaccines, said Sondra Norder, chief executive of St. Paul Elder Services, a nursing home in Kaukauna that has mandated vaccines for employees.
Among other factors, a committee at the nursing home tasked with examining each request is looking for inconsistencies in how staff live their lives, Norder said.
“For example, if someone applies for a religious exemption based on the belief that ‘my body is a temple,’ yet they are a smoker and have significant tattoos all over their bodies, there is reason to reject an assertion that they truly believe their body is a temple,” she wrote in an email to the Journal Sentinel.
Consistency is key, Hoffman said. A human resources department might question someone’s opposition to the COVID-19 vaccine if they know the worker has received other vaccines, or their objection to the use of fetal cell lines if they know the worker uses any of the other common medicines developed with cell lines.
In other cases, employers might find the same wording in a worker’s request in form letters available online.
Still, “there's only so much pushing you can do,” Hoffman said. “If you have objective proof that the individual’s not telling you the truth or that it isn't sincere, that's one thing. If it’s just, ‘we don’t believe it,’ it’s going to be difficult to prove.”
Lennington, of WILL, said he’d be hesitant to question employees’ beliefs too much. His firm has filed several high-profile suits against public health restrictions since the start of the pandemic, arguing they infringe on personal liberties and government powers.
“We’re told to give a really wide berth” in religious accommodation cases, he said. “There would have to be pretty much overwhelming evidence that they're inventing something.”
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Hitchcock Cross, who represents employees in discrimination cases, said she believes most people are earnest about their requests, and they’re willing to work with their bosses on solutions and accommodations — rather than quit or be fired.
“Employment is a big issue in people’s lives,” she said. “People want to keep their jobs.”
Federal law does allow employers to fire workers or put them on unpaid leave if a reasonable, affordable accommodation can't be made, or if the company decides it creates an "undue hardship" for the business. In the case of an unvaccinated worker, it could mean an accommodation of regular COVID-19 tests is too costly, or that being unvaccinated puts other workers at too high of a risk.
Employers are also aware of the risk of being sued if they deny the wrong request. Previously, requests for religious accommodations were often granted without question — needing to take Saturdays off or take breaks for daily prayers, for example.
For City of Milwaukee workers, an employee’s direct bosses review each request to figure out what accommodations are possible. Then it goes to the city’s department of employee relations, where a team of people is joined by the staff from city attorney’s office to decide on each case.
More:City of Milwaukee to implement vaccine mandate for city employees
The goal is to make sure the city is on “solid legal ground” if it denies a request, and that cases receive uniform treatment, said Makda Fessahaye, director of the employee relations department.
Faith communities consider individual conscience, obligation to community health
Also complicating matters is how communities of faith themselves view religious exemption requests.
Although nearly all mainline faith traditions argue the COVID-19 vaccine is morally acceptable, its distant link to abortion through the use of fetal cell lines is often cited as a reason for individual hesitation or resistance.
The Catholic Church supports the vaccine because of the “remoteness” of the abortion link. Last week, referencing the COVID-19 hospitalization of former La Crosse bishop and current Cardinal Raymond Burke, Pope Francis said vaccine resistance is “a bit strange, because humanity has a history of friendship with vaccines.”
But not every person of faith agrees with church leaders. In an August letter, Wisconsin’s five Catholic bishops asked the government to recognize that individuals may have different views on the vaccine than organized religion.
They emphasized the importance of one’s conscience in making decisions.
“A well-formed conscience stands not solely upon ecclesiastical authority, but also upon the law of God written in an individual’s heart,” the bishops wrote.
“It is the responsibility of the individual to raise moral or ethical objections to vaccination based on the dictates of his or her conscience,” they said, while also arguing that someone who foregoes the vaccine is obligated to take other steps to protect others from COVID-19.
For the Rev. Kerri Parker, executive director of the Wisconsin Council of Churches, getting vaccinated lies squarely within the Christian faith. The various traditions that make up the council all agree that communities are interconnected and individual decisions about one’s health actually affect everyone, she said.
“We are all one body and each of us are members of it,” Parker said. “We’re all about community. This is who we are intrinsically.”
She expressed concern about the influx of religious exemption requests among people who might not hold especially strong religious beliefs.
“I would encourage people to think really deeply before associating their request for an exemption with their faith,” Parker said. “If someone has a sincerely held belief, I want them to be taken seriously and that's not going to happen if half of my neighbors are running in looking for an exemption because they kind of, sort of, think it’s inconsistent with their faith.”
For faith leaders who are being asked to write letters vouching for their objections to vaccination, Parker urged a deeper discussion.
She asks clergy to talk through the issue with the person, and to listen carefully. Why exactly do they want to get out of this? Could the resistance be based more in misinformation and politics than in faith?
She compared it to a pastor counseling a couple before their wedding.
“If someone is approaching a pastor for any kind of ritual or guidance, we don’t just sign off on it and do it (right away),” she said.
At the Kaukauna nursing home where vaccines are required, its Catholic administrators see the shots as the “only tool” to reduce COVID-19 deaths among its immunocompromised population.
Last week, Norder, its president, said four workers had applied for religious exemptions. If their requests are approved, they’ll have to wear masks and undergo weekly testing. But if they're required to get the vaccine, all have said they will quit.
Before the vaccine became available, 31 residents died from COVID-19 after staff brought the virus in and spread it, Norder said. Nearly 100% of residents and 75% of staff have gotten vaccinated, she said.
“Unvaccinated staff are simply a risk to the wellbeing of our residents that we are not willing to take,” Norder said in an email.
In deciding to mandate the vaccine, administrators prioritized the “greater good,” Norder said, of creating a safe environment for vulnerable residents.
“We have to think also about those people, not just those who are opposed to being vaccinated,” she said. “We must ensure that those who believe in and rely on the vaccine to stay safe can feel safe in our facilities.”
Contact Sophie Carson at (414) 223-5512 or scarson@gannett.com. Follow her on Twitter at @SCarson_News.
