Employee Survival Guide® - “Take This Vaccine and Shove It!” Should Employers Get to Decide What Their Employees Believe?

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide podcast. In today's edition, we're going to talk about take this vaccine and shove it. Should employers get to decide what their employees believe? In a 1978 hit song, Take This Job and Shove It, country singer David Coe writes about his bitter woes of a worker who was finally able to leave a terrible job and put his unjust employer in his place. In recent weeks, a lot of employees who want to keep their jobs are nonetheless telling their bosses when it comes to the COVID-19 vaccine, they should take this vaccine and shove it. Unfortunately, many employers were replying in vain with a Ray Charles song, Hit the Road Jack. In recent months, a new dynamic has emerged in the American workplace,

Starting point is 00:00:50 which raises perplexing questions about the meaning of religious freedoms and the right of employers to determine what exactly that freedom means for their employees. As the Delta variant of the COVID-19 virus rages through the country, causing ever-increasing levels of illness, hospitalizations, and death, more and more employers are requiring their employees to get COVID-19 vaccinations in order to continue their employment. We recently posted an article announcing President Biden's September 9, 2021 sweeping executive order requiring vaccination of all federal employees and many contractors and also private firms above 100

Starting point is 00:01:25 employees. The scope of these government and private mandates are quite broad. These decisions will affect millions of American workers. It seems the issue is now ripe for debate. Some mandates, like President Biden's, provides an alternative of testing and masking in the event that a federal worker has either sincerely held religious beliefs or medical conditions that prohibit vaccination. CNN Business recently reported that United Airlines has implemented a tougher vaccine mandate that requires any employee seeking religious or medical exemption from the vaccine to be placed on an indefinite unpaid leave of absence if they receive an exemption. While United claims to be attempting to accommodate its workers' sincerely held religious belief,

Starting point is 00:02:09 it appears as though anyone requesting one is at serious risk of losing their livelihood. Each day in my employment law practice, I receive calls from employees at all sizes and types of companies who are facing dire and life-changing decisions. Should they get a vaccine that they do not believe is safe or effective? Should they get the vaccine even if it violates their spiritual beliefs? How can they be forced to decide between their livelihood and their faith in a country that was founded on the principle that we can believe as they choose? Perhaps the most consequent decision facing those with deep spiritual convictions on the subject is, how can they improve the sincerity of their religious beliefs? The questions are no less perplexing for employers.

Starting point is 00:02:47 If most major religious organizations in the United States allow their members to receive vaccines, why are so many claiming religious exemptions? If the most credible scientific evidence indicates the vaccine is safe and effective, and it does, how can they operate their business safely in the midst of a pandemic without requiring everyone to be vaccinated? How can they determine whether an employee's stated religious beliefs are sincerely held? Does sincerely held mean in line with the orthodox meanings of a particular church? What about the unorthodox teachings of an online church from a relatively unknown faith? If the belief can be whatever an individual claims it to be, how do we know the

Starting point is 00:03:25 exemption is not being abused? What if large numbers of workers claim the religious exemption? How can we keep employees and customers safe? What many of my clients are experiencing is that they are applying for religious exemptions from the COVID vaccine and their employers are unilaterally denying them. In some cases, the employer establishes standards of proof of the spiritual belief in question that are difficult or impossible to meet. When faced with a strong case for a sincerely held religious exemption, employers are responding with draconian requirements for the exempt, including complete isolation in the workplace for the unvaccinated or full-body PPE

Starting point is 00:04:03 and face shields as well as masks. Often these requirements are more extreme than the protocols in place at workplaces before the vaccine was implemented. Isn't this a form of retaliation for one's religious beliefs? The United Airlines decision reflects this trend. Medical exemptions are treated as more legitimate than religious exemptions. Although United is granting accommodations for employees who have a valid medical or religious reason not to get vaccinated, it disclosed this week that there would be costs for those who cite their religious belief as a reason for not to be vaccinated. United and other employers are officially stating that they are deciding on religious

Starting point is 00:04:42 exemptions on a case-by-case basis. But the reality is that the religious exemptions in general are being treated much more skeptically than medical exemptions. Is this heightened scrutiny appropriate? Is it legal? The problem is a difficult one. If the individual employee gets to decide on the sincerity of their religious beliefs, then rampant abuse of the exemption is likely. Anyone who does not want the vaccine for any reason may claim their religious beliefs prohibit them from getting it. If the employer gets to decide on the sincerity of the employee's religious belief, then the exemption will be meaningless. The recent United Airlines policy, as well as my daily call sheet, indicates that the

Starting point is 00:05:21 latter result is prevailing at the moment. Employers are overwhelmingly deciding that religious exemptions are not legitimate. While the questions surrounding mandatory vaccinations are murky, the law is clear. The U.S. Equal Employment Opportunity Commission, the EEOC, has provided guidance on the subject. The country's leading employment rights authority advises employers that while they can impose vaccine mandates on their employers or employees, they should not dispute the religious objections in most cases. The sincerity of the employee's belief must be, quote, generally presumed or easily established, end quote. The guidance is being widely ignored. The Americans with Disabilities Act, the ADA, protects persons with disabling medical conditions from the mandates if that condition would be affected adversely by the vaccine. Likewise, Title VII of the Civil Rights Act of 1964, Title VII,

Starting point is 00:06:11 provides that reasonable accommodations should be granted if one's deeply held religious beliefs prohibit vaccination. While the majority of religious organizations in the U.S. do not oppose vaccine, organizations in the U.S. do not oppose vaccine, the right to determine one's personal spiritual beliefs and what one's God requires is at the heart of the freedom of religion as defined in the First Amendment to the U.S. Constitution. Do I have a freedom of religion if the beliefs I may hold are determined by a corporate approved list of acceptable religions and belief systems? Some will say that losing one's job is a small price to pay for one's religious convictions and that those with strong objections may just go work elsewhere. This is the continuing fallacy of the employment at will rule. Employees may face long-term unemployment or career

Starting point is 00:06:57 devastation for leaving a job at the height of the pandemic. With the government and private employers piling on to the vaccine mandate bandwagon, where exactly are the religious unvaccinated going to work? Is it permissible for an employer to deny a position to an otherwise qualified job candidate because their religious beliefs prevent vaccination? Additionally, unemployment benefits are often denied to those who leave a job because of a rejected religious exemption. In my view, Title VII, the ADA, the EEOC guidelines, and the First Amendment are fairly clear. If low costs and reasonable alternatives such as masking, distancing, PPE, and testing are sufficient to keep the workplace safe while accommodating the religious exemptions, then those accommodations should be granted with little, if any, scrutiny of the

Starting point is 00:07:40 employee's beliefs. Employers should be much more hesitant to terminate or suspend employees who have strong spiritual beliefs about a vaccination. These protections provided by the law are fundamental to an American's right to determine one's own spiritual beliefs. While some abuses will inevitably occur, we should err on the side of protecting individual freedoms unless there are no reasonable alternatives. In the case of the COVID vaccine, reasonable alternatives exist. The Wall Street Journal reported an opinion piece on September 30, 2021 that provides a deeper understanding of the legal complexity of the Biden vaccine mandate. It is worth reading to get a fuller picture of the constitutionality of the emergency standard authorization given to OSHA,

Starting point is 00:08:23 the Occupational Safety and Health Administration. As illustrated by the United Airlines mandate, the laws that protect an individual's religious freedoms are being widely and flagrantly ignored by both private and public employers. Only when individuals begin to bring legal action to protect their rights will these issues be fully and fairly resolved in our courts? Employees who are being denied religious exemptions from the COVID vaccine or who are being told not to apply for one because their church does not prohibit the vaccine should consult an employment attorney as soon as possible. To protect our right to religious freedom, we must assert those rights whenever they are in jeopardy.

Starting point is 00:09:01 If you enjoyed this podcast, please contact Care Associates PC on the web at info at capclaw.com and have a great week.

Employee Survival Guide® - “Take This Vaccine and Shove It!” Should Employers Get to Decide What Their Employees Believe?

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