- The Washington Times - Monday, September 13, 2021

Faith-based exemptions are gaining a big role in the debate over employer vaccine mandates, forcing companies to vet what is a “sincerely held” belief or whether workers are using religion as an end-run around tough rules imposed by corporations and cheered by President Biden.

Workers across multiple faiths say scripture informs them that their body is a temple that shouldn’t be polluted by certain drugs. Some Catholics are pointing to a historical connection between fetal cell lines used in vaccine production and abortions from decades ago.

Vaccine requirements have historically included carve-outs for religious or medical reasons, though the deadly and all-encompassing nature of the COVID-19 crisis is prompting some companies to take a hard line.

Boston College, a Jesuit school, has pointed to Pope Francis’ promotion of vaccination as a public good in resisting exemptions. United Airlines, the first major carrier to impose a vaccine mandate, says employees who are granted a religious exemption to the shots will go on unpaid leave anyway, on Oct. 2, until the company figures out if the person interacts with customers and can work safely during the pandemic.

The debate is sparking a back and forth among employers, workers and groups such as Liberty Counsel, a nonprofit that focuses on religious-freedom cases. Its lawyers say unpaid leave is not a reasonable accommodation.

“I think it is ridiculous and offered in bad faith,” said Roger K. Gannam, assistant vice president of legal affairs at the Liberty Counsel. “All of a sudden it is now an undue hardship to allow any unvaccinated employees to set foot on an airplane. The airlines have been promoting how safe it is to fly for months.”

Mr. Gannam said the number of Americans who will seek religious exemptions will be “in the thousands.” 

The number is expected to rise as the administration, corporate America and governors use mandates to convince more Americans to roll up their sleeves. 

Leaders in both parties say the vaccine is the best tool to manage the virus, but Mr. Biden broke with Republicans by mandating the shots for federal workers and about 17 million health care workers. He told the Occupational Safety and Health Administration to mandate employers with 100 or more workers to require the shots or weekly testing of those who refuse.

Roughly 54% of Americans are fully vaccinated, and nearly 80 million eligible people haven’t come forward for the shots. The administration said it expects exemptions, but it will be tracking how they are used.

“We have got to be vigilant there and make sure that people are using them in the spirit that they’re intended, and not abusing them or asking for exemptions when they don’t apply,” Surgeon General Vivek Murthy told CNN’s “State of the Union” on Sunday. “That will be an area that we continue to monitor in the days and weeks ahead.”

Experts say some religious objectors believe that God will protect them from disease, so they should not rely on vaccines or anything else. Others are more specific, citing a tenuous connection to abortion in the technology used to grow or test the vaccines.

The cell lines involved in medical manufacturing, including the production of the Johnson & Johnson vaccine and testing of the predominant messenger-RNA vaccines for COVID-19, started with abortions performed in the 1970s and 1980s.

The adenovirus vector for the J&J vaccine is grown rapidly, and in large amounts, within the cell lines but then filtered out, so there is no fetal cell-line material in the shots. Also, the cells are lab-grown clones from the original line, so there is no remnant from abortions decades ago.

The Vatican has highlighted the importance of vaccination amid the deadly pandemic and said there are no recurring abortions involved in the cell lines.

Boston College highlighted that stance after some parents told the Boston Herald over the summer they were “disgusted” that requests for an exemption over the fetal-tissue issue were denied. The college defended its policy.

Dorit Rubinstein Reiss, a professor at the University of California, Hastings College of the Law, said in her experience, many objectors use religion as an excuse and have other concerns about the vaccine.

“There is a lot of abuse and some anti-vaccine activists have workshops on how to game this,” she said.

Mr. Gannam said it is not up to companies to counsel workers on how they feel, even if the pope weighs in.

“An employee’s personal religious beliefs don’t have to be validated by their denomination or a leader in their denomination,” he said, noting the Methodist Health System in Dallas granted religious exemptions to three of its clients who cited the fetal cell lines after the nonprofit sent a letter to the hospital on their behalf.

“As a faith-based institution, Methodist Health System takes religious exemption requests very seriously,” said spokesman Ryan Owens, adding the system is reviewing religious objections but cannot comment on “legal matters.” “We believe the best way to keep our hospitals and communities safe is to achieve a fully vaccinated workforce.”

Courts generally don’t second-guess the tenets of someone’s faith if the issue ends up in litigation. But disputes will arise as companies decide how lenient they want to be imposing their mandates.

“The question of how to determine whether an employee’s beliefs are sincere is a good one, as it is difficult to get inside an employee’s head to determine the sincerity of their belief,” said Tracey Diamond, a partner at Troutman Pepper law firm who specializes in employment law. “To make the analysis even more difficult, a sincerely-held religious belief does not need to be part of any organized religion to be valid. But it needs to be more than a personal or political belief.”

Washington state, which mandates the vaccines for teachers and many public workers, said it will be granting religious exemptions to comply with the law but it requires some workers to explain their beliefs.

“The process assumes employees are being truthful, but there may be follow-up questions for clarity,” said Mike Faulk, spokesman for Gov. Jay Inslee, a Democrat.

The form provided to HR departments says they should grant an exemption immediately if they attest they have both a religious belief that prevents them from taking the COVID-19 shot, and they have “never received a vaccine or medicine from a health care provider as an adult.”

If they check “no” on either question, the forms ask the person to explain why the COVID-19 vaccine conflicts with their beliefs, how long they’ve held those beliefs, whether their beliefs conflict with other medicines and if they’ve received vaccinations in the past.

Some experts say employers are making sure workers aren’t hypocritical about the COVID-19 vaccines, while others, including Mr. Gannam, say the questions amount to a form of “gotcha” and that the pandemic forced people to scrutinize how their medicines are made.

He said nothing in Mr. Biden‘s announcement seemed to suggest the administration would try to ban or eliminate religious exemptions in forthcoming OSHA regulations, though he is worried some companies might use it as cover to take a hard line.

“Many employers and universities have appropriately balanced and been generous,” he said. “It’s just the handful that are taking it in the wrong direction.”

United Airlines said it will take a number of factors in trying to accommodate workers with a religious objection to the vaccine, including their work requirements and the state of the pandemic in the U.S. Decisions on requests are rolling in now.

Employers who are denied must get their first shots by Sept. 27 and be fully vaccinated within five weeks of their denial notice or will be “separated from the company.”

It said people who are granted accommodations will be on unpaid leave until the company can determine safety precautions in three categories — people in management and administrative roles who may be able to mask up or don’t need to come to the office at all; noncustomer-facing roles in which testing and masking may be sufficient; and customer-facing pilots, flight attendants and customer service agents who will need to stay away unless they get the shots.

“Once the pandemic meaningfully recedes, you will be welcomed back to the team on active status, which may include other, safety-related workplace measures that do not exist today,” the airline told employees in a letter. “Given the large number of people who work at and travel through our operation daily, we need to do everything we can to ensure their safety.”

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