Beyond Zero Sum
Jennifer Gray Woods November/December 2021Can we protect both public health and freedom of religious conscience when it comes to vaccine mandates?
We’re almost two years into the pandemic caused by COVID-19, and among the many still-contested questions is how businesses and organizations can best protect both their employees and their communities.Vaccine mandates are still generating pushback and vaccine hesitancy persists despite clear evidence that vaccinations provide effective protection for individuals and populations against the virus and its most serious effects.1
Although few in numbers, there have always been those whose religious beliefs lead them to oppose vaccinations or other forms of medical treatment. Many Christian Scientists, for instance, rely primarily on prayer for healing and often utilize religious exemptions when vaccinations are mandated. Likewise, other people of faith hold religious beliefs and practices that lead them to opt out of a range of medical interventions. For these individuals, vaccination mandates may signify a violation of their religious freedom.
It’s important to note that the world’s major religious denominations and faith communities have issued statements supporting public health measures aimed at stemming the spread of COVID-19, including vaccinations. The Seventh-day Adventist Church, for instance, provides its members with theological and practical counsel, reminding them that the “choice not to be vaccinated is not based on Seventh-day Adventist Church teachings or doctrine.”2
Yet religious freedom is not just about protecting mainline religious groups or beliefs; it’s about respecting the right of every person to believe and act according to personal religious beliefs and individual conscience.
There is, however, a growing sentiment that for any vaccination mandate to be effective it should be applied to everyone across the board, with no allowance for religious exemptions. One well-known legal scholar, Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, has made the argument that religious exemptions to vaccine mandates should be eliminated entirely.3 According to Professor Chemerinsky, religious exemptions aren’t required by law and aren’t desirable as a matter of public policy.
Through the years, courts have held that society’s interest in preventing the spread of deadly, highly transmissible diseases outweighs the right to free exercise of religion. In the seminal 1905 Supreme Court case Jacobson v. Commonwealth of Massachusetts, the Court upheld the state of Massachusetts’ vaccination mandate over the objections of a vaccination objector, Mr. Jacobson, stating that there were times that, for the public good, an individual’s liberty may be restrained.4 Courts have held that a state has a compelling interest in the protection of its citizens from communicable disease.5 And courts have also not found that there is legal requirement to provide religious exemptions to vaccination mandates.6
Despite this, most vaccination mandates do include religious exemptions of some sort. While there are some employment-based vaccination mandates for certain health-care workers in the U.S., the largest vaccination programs are mandated at the state level as a requirement for children to enroll in school. By requiring vaccinations at the school level, communities have been able to protect their populations against contagious and oftentimes deadly diseases such as mumps, measles, and hepatitis B. This broad community protection is accomplished not through reaching 100 percent vaccination compliance, but through what is known as “herd immunity.” Once a certain percentage of a population is immunized against a disease, this provides protection to those who aren’t immunized. So while all states currently mandate certain vaccinations for children to enter school, the vast majority of these states also allow for religious exemptions.
The number of individuals who have historically requested a religious exemption from these school vaccination mandates has been small, meaning that herd immunity has rarely been compromised by granting these requests. However, in recent years there have been instances in which the number of individuals requesting religious exemptions have hindered a community’s ability to reach herd immunity. Between 2008 and 2015 California experienced a number of measles outbreaks as vaccination rates in some areas fell beneath the threshold necessary to maintain herd immunity.7 In response, California legislators tightened the state’s vaccination laws to ensure that more individuals received the necessary vaccinations. Now parents in California can request an exemption only if their child has a medical reason not to be vaccinated. Since California tightened its requirements, the vaccination rates in the state have risen, and communities have achieved the required vaccination levels to obtain herd immunity against the measles and other communicable diseases.
When states consider whether to allow for religious exemptions to school-based vaccination mandates, they are balancing two competing interests—protecting individual freedoms and protecting public health. They are weighing the extent to which they can allow an individual to act according to his or her conscience without exposing the community to harm based on that individual’s actions.
During normal times, when vaccine-preventable disease rates are low and vaccination rates are much higher, religious accommodations to vaccinations present a small health risk, which would weigh in favor of granting an exemption when requested. It’s clear, though, that we’re not in normal times. COVID-19 infections continue to rise, the number of new variants are growing, and vaccination rates are nowhere close to the levels needed to reach herd immunity. So now the question we face is how to balance these two competing interests: individual rights versus public safety. Should we remove religious exemptions and accommodations completely from vaccination mandates in order to reach herd immunity? Is Professor Chemerinsky correct that the only way for employers to protect health and lives is by requiring all employees to be vaccinated?
With many employers now mandating COVID-19 vaccinations for their employees, or considering mandates, some businesses are now making these difficult determinations. Fortunately, Title VII of the Civil Rights Act describes the extent to which an employer must accommodate an employee’s request to be excluded from a vaccination mandate for religious reasons.8 Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.9 Under Title VII, an employee’s religion “includes all aspects of religious observance and practice, as well as belief” and an employer is required to reasonably accommodate an employee’s religious observance or practice unless the accommodation would pose an “undue hardship on the conduct of the employer’s business.” An undue hardship has been defined by the courts as anything that would create more than a minimal cost or burden to the employer.10
The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal antidiscrimination laws related to businesses, including the enforcement of Title VII, and recently issued guidance for employers on handling religious exemption requests. According to this guidance, when an employer becomes aware that an employee is seeking an exemption based on a sincerely held religious belief, practice, or observance the employer must provide a reasonable accommodation unless it would pose an undue hardship.11
The EEOC guidance provides some examples of reasonable accommodations, including telework or job reassignment. In determining what a reasonable accommodation could be, an employer should consider the proportion of vaccinated employees who are currently in the workplace, as well as what level of contact an employee would have with nonemployees, whose vaccination status is unknown.
Over the past year and a half we have seen several mitigation strategies that have been effective in helping slow the spread of the virus. These strategies could continue to be implemented for individuals who have religious objections to the vaccine. Such accommodations could include requiring unvaccinated workers to wear face masks, work at a social distance from others, get periodic coronavirus tests, or be given the opportunity to work remotely when feasible.12 Employers could also encourage vaccination by providing incentives for those who are vaccinated.
Eliminating the religious exemption for vaccination mandates should be utilized only as an option of last resort when accommodations cannot be made without causing an undue hardship for employers. On this point it’s important to clarify that eliminating the religious exemption would not mean that employees would then be vaccinated against their will. Instead, it would mean that employers would no longer have to offer an accommodation and employees would simply be terminated from employment without recourse under Title VII. This is a step I believe should be implemented only in extreme circumstances when public health concerns dictate.
Even in the midst of a pandemic, there’s no need to take the view that eliminating religious accommodations to vaccinations is the only way to protect public health. While the right to practice religion freely does not include liberty to expose the community or coworkers to deadly, communicable diseases, there may be reasonable accommodations that can be made without imposing an undue hardship on employers. I believe these accommodations can, in many instances, strike the proper balance between respecting freedom of religious conscience while still protecting society at large. And by being willing to engage in this often-difficult balancing process, we can continue to safeguard not only public health but also one of America’s foundational values.
1 At the time of writing this article, the situation regarding federal vaccine mandates was still evolving. The Department of Labor’s Occupational Safety and Health Administration (OSHA) was still in the process of developing a rule that would require all employers with 100 or more employees to ensure their workforce was fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
2 ”Resources on COVID-19: Vaccination Information, Guidance on Immunization, and Additional NAD News and Information,” March 31, 2021. www.nadadventist.org.
3 Erwin Chemerinsky, “Op-Ed: Don’t Exempt Religious Objectors From Vaccine Mandates,” Los Angeles Times, July 23, 2021.
4 Jacobson v. Commonwealth of Massachusetts, 25 S.Ct. 358 (1905).
5 Congressional Research Service, “An Overview of State and Federal Authority to Impose Vaccination Requirements,” May 22, 2019.
6 Ibid.
7 Priya Krishnakumar and Soumya Karlamangla, “How Stricter Vaccine Laws Spared California From a Major Measles Outbreak,” Los Angeles Times, May 6, 2019; Marie Killmond, “Why Is Vaccination Different? A Comparative Analysis of Religious Exemptions,” Columbia Law Review 117, no. 4: 913.
8 Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352).
9 “It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”—Ibid.
10 Ibid. It is important to note that legal protections under some state laws are more protective than those under Title VII with some states adopting a “significant difficulty or expense” standard.
11 The United States Equal Employment Opportunity Commission, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” May 28, 2021.
12 Ibid.
Article Author: Jennifer Gray Woods
Jennifer Gray Woods is director of government affairs and associate director of the Public Affairs and Religious Liberty Department of the Seventh-day Adventist World Church. She holds a J.D. from Harvard Law School and a Master of Public Health from Johns Hopkins University.