I have had many inquiries over the last few weeks from people who are being forced to choose between getting the COVID-19 vaccine and losing their jobs. As I’ve indicated in prior blog entries, it is my professional opinion that outside of very, very narrow exceptions employers are absolutely within their rights to require vaccination as a condition of continued employment. “But, Shaina, what are those narrow exceptions?”, you ask? I’ll tell you: disability-based exemptions and religious exemptions.

Disability Accommodations

Disability-based exemptions are fairly straightforward. Employees work with their physicians to determine whether it is medically-safe for the employees to obtain the vaccine. The physician’s judgment on the matter is almost always used as the basis for an employer’s decision to exempt an employee from the vaccine requirement. Religious exemptions, on the other hand, are subject to interpretation.

Sincerely Held Religious Beliefs

Employees who assert that they have a “sincerely held religious belief” that prohibits them from receiving the vaccine leave employers with the difficult choice of determining whether the belief is truly sincere. Decisions may vary from employer to employer, and are likely to turn on the nature of the claimed belief. For example, it may be difficult for a Roman Catholic employee to claim a religious exemption, when the Pope has taken the position that believers should get the vaccine. Likewise, a belief may become suspect when it is specific to the COVID-19 vaccine, such as in situations where employees have had to take other vaccines to maintain employment. Nurses, for example, who have gotten Hepatitis A and B vaccines to work at a clinic may find it hard to prove a “sincerely held religious belief” that would suddenly prohibit this vaccine. One thing I can almost guarantee as that the issue will be heavily litigated and determinations regarding religious exemptions are a minefield that must be carefully navigated to minimize risk.

Take Home Message

No rights are absolute in the United States. First Amendment rights to freedom of speech or assembly have limits—and so do religious freedoms. If you are looking for an example, I would consider the fact that individuals could not murder another human in a ritual under the theory that human sacrifice is mandated by their religion. That is an extreme situation, but it proves my point. Freedom is not unlimited; but the boundaries between freedom and restrictions on those freedoms is where litigation happens. That border is where employers are most likely to find themselves defending their stance on vaccine mandates.

As for me, I’ll say this: my sincerely held belief is that as members of a civilized society we have the duty to protect the health of others through vaccines. You may believe differently, and I recognize that. However, if you are looking for an attorney to argue against the vaccine mandate in the employment context, I respectfully suggest that you find alternative legal counsel.