By Andrew Keshner
First came the disputes over whether employers are allowed to fire workers refusing COVID-19 vaccination. Now come the fights about who gets religious exemptions when vaccination mandates kick in — and what counts as fair treatment for people even if they get an accommodation.
Even in the best of times, it’s a drama that mixes science, religion and law. Set this against the backdrop of a 19-month-old global pandemic and the debate about the balance between a person’s faith and public health takes on new urgency, observers say.
Washington State University head football coach Nick Rolovich became a prominent example Monday night.
Two years into a five-year, $15.6 million contract with the public university — a contract that’s said to make him the highest-paid state employee — Rolovich sought a religious exemption to Washington’s vaccination requirement for state workers. Rolovich was raised Catholic and attended a Catholic high school in the San Francisco Bay area, but the 42-year-old coach reportedly declined to say whether he identifies as Catholic today.
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 were cited as preventing a university spokesman from discussing Rolovich’s case with MarketWatch. As of Tuesday, the university had granted 98 religious-exemption requests.
Rolovich had 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 conference win over 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.
Trader Joe’s lawsuit
Gregg Crawford, an 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 being granted the exemption in July that an upcoming Trader Joe’s leadership 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 ‘OK, we grant your exemption. Our accommodation is you go home without pay.’ “
That’s one part of the pending lawsuit some United Airlines /zigman2/quotes/205037281/composite UAL -9.57% workers filed against a carrier that’s achieved a 99.7% vaccination rate through in part through a 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 were placed on unpaid leave for an indefinite time period.
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 because of a belief, they “must provide a reasonable accommodation unless it would pose an undue hardship.”
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.”
Decades of case law and guidance about vaccines and religious exemptions don’t, for companies, make the task any easier, according to 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, 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, for instance in the area of flu-shot requirements among healthcare 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 was always given weight in court, Koch said, but “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 healthcare workers, like one in New York. There, a federal judge sided with 17 employees 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 exemptions by the high court, Koch said.
How many religious exemptions are we even talking about?
Such medical and religious exemption requests have hovered in the low single digits when companies have required 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 workers 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.”
In the big picture, Koch agrees the exemptions might be a small number — but the specifics of 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 (and himself a Catholic educated at Jesuit institutions ), said earlier this month that there are “ 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, said 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 that 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 that “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.