Judging 'sincerely held' religious belief is tricky for employers mandating vaccines
Updated October 4, 2021 at 12:51 PM ET
Brittany Watson worked as a nurse at the hospital in Winchester, Va. — until her employer, Valley Health, announced that all staff must get vaccinated.
Watson says there are a couple reasons why she hasn't gotten the jab. One is that she got COVID-19 in November, so she figures she has some natural immunity. And she's also skeptical ofall the carrots that have been dangled – things like college scholarships, hunting rifles, fishing licenses — to urge West Virginians like herself to get vaccinated.
"I possibly would have gotten it if it wasn't such a push to get it," Watson says. "And then they mandate it. Now you're telling me what to do. I've worked 18 months in the pandemic, and now I'm not allowed to work there if I don't have a vaccine."
Whether an employer grants a religious exemption to a vaccination requirement is generally based on a judgment of the employee's sincerely held religious belief — and whether the accommodation poses an undue hardship on the employer, or would present a direct threat to health and safety of others.
Watson organized a picket line outside the Winchester Medical Center in protest of Valley Health's mandate. She also applied for a religious exemption, signed by her pastor.
"My explanation was that 'Human life is sacred. The Bible tells you that your body is a temple. The vaccine is made from aborted fetuses. The mandate is directly affecting my religious beliefs.' And that's it," she says.
The vaccines themselves do not contain any fetal cells. Fetal cell lines were used in the vaccines' development, as they commonly are in developing new pharmaceuticals.
Valley Health did approve her religious exemption, but Watson has decided to look for a job elsewhere.
Watson's girlfriend, Katherine Hart, also had her religious exemption approved by Valley Health. After striking for three weeks, Hart returned to her job as a nurse practitioner at an urgent care center in Martinsburg, W.Va.
"I went back to work and literally nothing has changed. I'm seeing the same patients," Hart says. "I do COVID testing. I see COVID patients every day. I'm wearing my same masks, I'm following the same rules. Literally nothing has changed, which makes me even more suspicious, because if I was that much of a menace to society, you'd think that they would have to change the rules and make me do something differently."
Hart and Watson say others they know had their exemption requests rejected.
Last month, Valley Health terminated the employment of 72 employees, out of a workforce of more 6,000, due to noncompliance with its vaccine mandate. The health care system says more than 95% of its employees are now vaccinated, with 5% exempt for religious or medical reasons.
No major religion has come out in opposition to the COVID-19 vaccines. Jehovah's Witnesses, Christian Scientists, and the Catholic Church have all issued statements saying that their religion does not prohibit members from receiving the COVID-19 vaccine. The Pope has declared getting vaccinated "an act of love."
Evaluating requests for religious exemptions is thorny
"Employers are being flooded with these requests [for religious exemptions], and are having to evaluate them in large numbers," says Alana Genderson, an attorney specializing in labor and employment law at the firm Morgan, Lewis & Bockius.
Because employers are wary of wading into assessing questions of religion and personal belief, Genderson says "employers feel more comfortable judging undue hardship, and whether there is an accommodation where the person would not be a direct threat to others."
The idea of evaluating sincerity is particularly thorny.
"Sincerity is like, what's true in your heart. There's no way to judge that as religious or not, or as sincere or not," says Kira Ganga Kieffer, a doctoral candidate in religious studies at Boston University, where she's writing a book on vaccine skepticism in America.
But there is a legal basis for employers to assess sincerely held religious belief.
Genderson says that according to federal guidance and previous court decisions, employers may consider several factors when assessing the sincerity of a religious belief.
"Those factors can include whether the employee's behavior is inconsistent with the professed belief; the accommodation constitutes a desirable benefit likely to be sought for secular reasons; the timing of the request renders it suspect; or the employer has an objective reason to believe the accommodation is not sought for religious reasons," she explains.
Employers can request additional information from the employee, such as asking whether they take other medicines that also used fetal cells in their development, like Tylenol or Motrin.
A tension between religious freedom and public safety
When Kieffer started her research, she was originally looking at measles outbreaks in places where parents had opted out from school-required vaccinations.
In those cases, she says, "it was political, yes, but it was not a red versus blue issue. It wasn't a Republican versus Democrat issue. You had people on both sides with the measles."
But the politicization of this virus has changed that.
"The folks that are most angry now or most objecting now are kind of a new cohort, I'd say, that is much more traditionally politically motivated," Kieffer says.
The stakes couldn't be higher. As religious exemptions are now being sought in droves, their use raises concerns that they pose a serious public health risk.
"We believe firmly that religious freedom should not be a license to cause harm to others," says Rachel Laser, CEO at Americans United for Separation of Church and State. She says it's problematic to have public safety hinge on difficult-to-assess questions of individual religious sincerity.
"What that created is a situation where we are actually seeing herd immunity being put at risk, and public safety being put at risk, where religious exemptions are sort of so voluminously being claimed," Laser says.
"What we need to do is is draw a line where religious freedom would put lives at risk and where it would cause harm to others," she says. "So we don't even have to get to that calculation of sincerity."
Some see mandates as the wrong approach
"I actually think a mandate is a blunt instrument at this stage in the game, because it's all so new," says Jason McKnight, lead pastor at Grace Fellowship Church in Kinston, N.C.
He himself is vaccinated, and church members have asked for his guidance in how to approach the mandates.
"Obviously, scripture does not talk about vaccines," he says, laughing. "So how do we seek principles and use wisdom to apply rightly, how someone needs to live in their consciences, but not in a way that's silly?"
He says vaccine concerns are something that some people are struggling with, among many other questions in their lives. He hears concerns that the vaccines are still too new, too untested — but people might not have a choice about getting vaccinated, if they want to keep their jobs.
McKnight says if a member asked for his signature on a religious exemption, he thinks he would sign it.
"Part of my role is to stand with the underdog. That's what Jesus did," he says. "And that's why we're working at trying to figure out how to get Afghan refugees here, why we're working at trying to help migrant workers. Nurses that are going to lose their job because they're just not ready to be vaccinated just seems a little harsh right now in a civilized world."
Others suspect resistance to vaccination is politically motivated
Randall Balmer was raised in the evangelical church, and is now a professor of religion at Dartmouth and an Episcopal priest.
He suspects much of the opposition to the vaccines is politically motivated.
"I have to believe that something else is at work here, that there is some sort of underlying ideology that says, I don't know: 'We don't want the Biden administration to succeed in vanquishing this public health crisis,' " he says.
"There's certainly no theological basis for this sort of opposition."
And he thinks many churches could be doing a greater public service in the pandemic, noting that they enjoy tax-exempt status.
Balmer says "a reasonable approach to this dire public health crisis would be for these churches, these religious organizations to say, 'Listen, we understand that the public has been subsidizing us for a long time. In return, we think we have a civic obligation, and we're willing to assume that obligation not only to be vaccinating ourselves, but to vaccinate others.' "
"And I even dare say that this might be what Jesus would do in a similar situation," he says.
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