As if the vaccine mandate could not get more complicated, we are now facing the exemption conundrum as more and more public and private employers are responding to the COVID-19 vaccine mandate as proclaimed by some state governments and President Joe Biden’s declaration. We are also seeing many firefighters, other public safety officials and medical personnel pushing back against the mandates and are willing to lose their jobs as a result of it.
The Current Law
The Supreme Court upheld the constitutionality of vaccine mandates more than 100 years ago, in the 1905 Supreme Court case Jacobson v. Massachusetts enabling states to require vaccines under the police powers of the States and their applicable state laws. The court in its decision also made it clear that employers need to respect their employee’s rights to include their religious beliefs and disability request exemptions. Jacobson v Massachusetts decision raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty. For a further in-depth discussion please read this article from the National Institute of Public Health. [i]
The protections for religious objectors are in state law, the U.S. Constitution and federal law, particularly Title VII of the Civil Rights Act of 1964, which requires companies to make “reasonable accommodations” for workers who have “sincerely held” religious beliefs that conflict with vaccination. [ii]
Podcast: Fire Service Court: Vaccine Mandates
Some states are mandating vaccinations for their state employees and those holding medical licenses such as nurses and doctors and firefighters holding EMT and Paramedic licenses or certifications. There are many legal challenges originating from firefighters in Los Angles, Washington State and Rhode Island to name a few and many from medical workers and police unions. Washington State Employee labor union settled their case on the Washington Governors mandatory vaccines but more cases are unresolved and are pending. In Rhode Island, a Superior Court Judge struck down a request by the Rhode Island Association of Firefighters for an injunction barring the enforcement of the state’s vaccine rule, which could lead to the suspension or revocation of EMT licenses for unvaccinated firefighters.
As of todays update (9/19/2021), none of the Washington State Courts have upheld challenges to the vaccine mandate by various unions and collective legal challenges by non-union workers and we are seeing this trend across the country. Most recently as well, a federal judge in Eastern Washington denied a bid by firefighters, state troopers and others to halt Washington’s COVID-19 vaccine mandate for state workers and emergency responders.
Read more at: https://www.kansascity.com/news/article255283796.html#storylink=cpy
As I envisioned, the courts will cite and uphold Jacobson and its progeny in its deliberation on the numerous challenges to the vaccine mandate.
Exemption Requests
As more employers require their workers to get vaccinated against COVID-19, more firefighters and others affected by the vaccine mandates are finding religion, while holding “sincerely held religious beliefs” that, they say, prevent them from getting the shots. This brings up many questions such as what are the rules surrounding religious exemptions; what constitutes a “sincerely held” belief; and how much leeway do employers have when faced with a request for an exemption claims based on religion?
What is a “reasonable accommodation”?
The issue of reasonable accommodation is based on what it would take to minimize the risk posed by an unvaccinated employee. Could the person work from home; or do the job in a private office; or otherwise maintain minimal contact with other workers and the public? Is there another, similar job that the person could do remotely?
For many employers, accommodations aren’t “reasonable” if it imposes an undue financial or operational burden on the company and there is no current law in place that makes that requirement on the employer.
For firefighters it is important to bear in mind that if your employer mandates COVID-19 vaccinations, your religious objection, no matter how sincerely held is no guarantee that you can keep your job. The employer is obligated to try to find a way to keep you at work unvaccinated, but whether that’s possible depends on your essential job functions. Recently, a Washington State trooper, a 15-year veteran, was granted a religious exemption based on a “strongly held religious belief,” only to be told that his option is to be reassigned. “Performing the essential functions of your position unvaccinated poses a threat to the health or safety of yourself and others in the workplace,” read the letter from the WSP’s Human Resources Division. [iii]
Firefighters and other health care workers would find it difficult to work from home and be effective in their occupation. When the pandemic first started, your employer placed some early restrictions on employees by mandating masking and other PPE precautions and testing and quarantining if you were symptomatic or tested positive. Now, mandatory vaccines are the new standard and the employer is attempting to manage the effects of the mandates.
If you can’t work from home, can’t socially distance from co-workers or the public, and can’t be tested frequently enough to assure the safety of those you come into contact with, your employer may have reason to replace you. If you are unable to perform the essential functions of the job even with accommodation, then there’s no accommodation that’s going to help you. Remember, employers have a legal obligation to maintain a safe and healthy workplace
Workers can also seek medical exemptions based on severe allergic reaction after a previous dose or due to a component of the vaccine, a history of myocarditis or pericarditis after a first dose or if they have received the monoclonal antibody treatment. Even these exemptions may not be enough for you to retain your current job without reassignment or involuntary release from your job.
Employers Responsibilities
Employers must work with their employees on the impact of the vaccine mandate. Most workers in the United States are at-will, meaning your employer can release you from your job for any reason as long as it is not for discriminatory reasons. Employees in a unionized environment, the employer must bargain for the impact of the mandates to include a reasonable accommodation for those eligible if those accommodations are available.
If employees are requesting a religious or medical exemption, employers must look at each employee’s religious or medical request for exemption and go through an interactive process with the firefighter/EMT or paramedic seeking a reasonable accommodation to determine those sincerely held beliefs or for medical reasons.
The employer must process the request and document the evaluation and decision related to the request. These are the keys to an adequate legal review and a legally defensive position. This process provides a clear pathway the department may have to take in either accepting or rejecting an exemption request. Employers can’t dismiss out of hand or ignore a request for a religious or medical exemption. The employer has to engage with the worker “not only to find out the nature of the request, but also to find out if accommodation is possible and reasonable.”
You may ask what sorts of beliefs might qualify? Tough question with an equally fuzzy answer. A 2002 California appeals court laid out three factors for a religious exemption: a religion addresses “fundamental and ultimate questions,” consists of “a belief-system as opposed to an isolated teaching,” and “often can be recognized by the presence of certain formal and external signs.” Not every “religious belief” constitutes a recognizable religion.
Employers can ask for the details of the religious conviction behind the request for an accommodation and explore whether the objection is based on politics, ideology or medical concerns. If the employer denies the request and the worker sues, the burden will be on the worker to establish that they were motivated by a sincere religious belief or had a documentable medical condition preventing the administration of the injection. It is very difficult for an employer to question the sincerity of somebody’s religious belief as there are really no “questions” the employer can ask to test whether a worker’s claim is sincere. The difficulty is an individual’s personal religious conviction can differ from their organized and recognized religion and even the courts have the same difficulty in recognizing sincerely held beliefs. Remember, as of this writing, there are no major and recognized religions oppose the vaccines
Medical exemptions must go through the same inquiry accompanied by a letter or note from a licensed health care provider indicating a medical condition preventing the administration of the vaccine (or any vaccine for that matter) exempting the employee. Again, if the employer cannot provide a reasonable accommodation, the employee may be reassigned or released from duty.
Employees Responsibilities
Remember this vaccine mandate originated from the Federal or state government(s). Your employer is responding to these mandates with limited options. Do the research on the vaccine from reputable sources and make your decision based on your research. Think long term and the effects on your community, family and co-workers. I have often stated in this forum and in public presentations, YOU have a choice. Make the right one.
Some thoughts
- Would it be better to reject all exemptions from the vaccine mandate with the exception of those requested for medical reasons?
- We serve the public so what about the public interest and their protections from Covid 19?
- Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose `undue hardship’ on the employer. [iv]
- Your employer has the obligation to create a safe workplace.
- While the regulation may make it more difficult for employers to accommodate religious or medical exemptions; it does not create a ‘physical impossibility.
- There are no current reliable tests for “natural immunity” from Covid even if you have been infected and recovered.
- There are no philosophical or political exemptions.
- Make the correct decision for you, your community and family.
[i] Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law (nih.gov)
[ii] What is a religious exemption from the COVID vaccine? – Los Angeles Times (latimes.com)
[iii] Religious exemption not enough to save jobs as vaccine mandate looms (q13fox.com)
[iv] Questions and Answers: Religious Discrimination in the Workplace | U.S. Equal Employment Opportunity Commission (eeoc.gov) (see at #9)
This commentary reflects the views of the author and not necessarily the views of Fire Engineering.
This commentary should not be construed as legal advice or counsel.
