For months, religious exemptions have been a key battleground in the fight over COVID-19 vaccine mandates. But in some states, present conflict could soon look like child’s play.
Across the country, conservative lawmakers are using faith-based and other types of exemptions to weaken workplace vaccine mandates. In Utah, Iowa and a handful of other red states, workers with a variety of vaccine-related concerns can now sidestep shot requirements.
“It seems like the bills are drafted to let the exemptions swallow the rule,” said Sharon Brett, legal director of the Kansas chapter of the American Civil Liberties Union, to NPR about conservative resistance to vaccine mandates in her state.
Many of the new laws instruct employers to accept religious exemption requests at face value. At least one requires businesses to offer exemptions based on “sincerely held personal beliefs” that aren’t tied to faith.
These policy moves will further complicate efforts to sort out how to apply existing religious freedom protections to the workplace, legal experts said. They also make it difficult for businesses covered by proposed federal vaccine mandates to know how to proceed.
“We’re in uncharted territory here,” wrote Douglas Laycock, a professor of law and religious studies at the University of Virginia, in an email.
New balance of power
Under typical circumstances, requests for religious exemptions from workplace polices are a starting point for a negotiation of sorts. Employers have a right to ask follow-up questions about employees’ religious behaviors and beliefs, and they can propose a different accommodation than what’s initially requested.
If company leaders determine that the request is insincere or that a religious exemption would place an “undue hardship” on their business or staff, then they can say no. In past cases, the courts have generally been deferential to employers’ decisions, as the Deseret News reported earlier this fall.
This legal context helps explain why many employers have felt comfortable pushing back against requests for religious exemptions to COVID-19 vaccine mandates, even when they come from high-profile employees.
In late September, the NBA turned down a request from Andrew Wiggins of the Golden State Warriors. In mid-October, former Washington State head football coach Nick Rolovich lost his job after the school refused to grant him a religious exemption from the state’s vaccine mandate.
However, many of the new laws dramatically shift the balance of power in the workplace. Employers in some states have essentially lost their right to refuse religious exemption requests.
For example, the Kansas policy prevents business leaders from second-guessing any employee who submits a written waiver request. In Iowa, receiving a faith-based exemption to a workplace vaccine mandate is as simple as submitting a brief statement spelling out your beliefs.
These laws go “well beyond what the free exercise requires,” Laycock said, noting that they protect and even invite “insincere claims.”
In Utah, lawmakers went above and beyond offering strong faith-related protections and created a category of exemptions based on “sincerely held personal beliefs.” It’s unclear how employers are meant to judge the sincerity of beliefs that aren’t tied to a specific religious or philosophical system, legal experts said.
“There appear to be no parameters, legal authority or guidelines for employers to consult and follow or to help determine what a ‘sincerely held personal belief’ is. The law implements a very broad exemption and likely undermines any employer vaccine mandate,” wrote attorneys from Holland & Hart LLP in an analysis of the new Utah policy.
In other words, the law raises many questions for employers. In Utah, as well as in other states implementing new mandate-related policies, business leaders are struggling to sort out the competing demands of federal and state officials, as NPR reported last week.
“Employers are in this rock and a hard place between the federal government and the state government,” said Denise Hill, an attorney who wrote a book on workplace vaccine mandates, to NPR.
As Laycock noted, it’s unclear what will happen next. In the short term, businesses that oppose new policies regarding COVID-19 vaccine mandates don’t have a clear path to victory in the courts.
“There are many crackpot ideas in every legislature, and some of them get enacted,” he said. “Mostly they are constitutional.”
In the long term, federal vaccine guidelines may supplant contested state-level ones. But currently, the Biden administration’s plan for private employers is on hold due to legal challenges. (Other federal vaccine mandates, including the ones for members of the military and federal contractors, remain in place.)
For employers who support vaccine mandates, the best course of action may be to head off new exemption requirements or other mandate-related proposals before they become law, legal experts said.
In Texas, business groups successfully rallied against a Republican plan to prohibit workplace vaccine mandates, as The Texas Tribune reported in October. A similar measure died in the Wyoming Senate this month.