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By PORAC | October 1, 2021 | Posted in PORAC LDF News

Religious Exemptions to Employer Mandatory Vaccination Programs

Founding Partner
Messing Adam & Jasmine LLP

A Way to Avoid Vaccination or a Trap for the Unwary?
Unfortunately, the COVID-19 pandemic is not going away anytime soon, and the appearance of variants of the virus has resulted in a resurgence of the disease in the U.S. and around the world. Voluntary vaccination has proven inadequate to stem the tide of COVID-19, forcing governments and employers to consider other methods for increasing the ranks of the vaccinated. For example, Delta Airlines has implemented a $200 monthly surcharge for health insurance of all employees who are unvaccinated. Many public and private employers (Cisco Systems, Eli Lilly, Google, IBM, United Airlines, New York City Public Schools) are requiring all workplace employees to be vaccinated against COVID-19, and the list is growing.
On August 16, PORAC sent an attorney position letter to its members regarding the legal issues pertaining to mandatory vaccination programs implemented by public-sector employers. The LDF Position Letter, which can be found on PORAC LDF’s website at, was approved by numerous outside panel attorney firms of the Legal Defense Fund. If you have not already reviewed this letter, you should do so.
As indicated in the LDF Position Letter, one possible exemption to an employer-mandated vaccination program can occur when an individual’s opposition to receiving the vaccine is the result of a “sincerely held religious belief.” This article will discuss the process for asserting, determining and accommodating a religious belief exemption with respect to a mandatory vaccination program instituted by a governmental entity (state, county, city or district) in its capacity as employer.
Freedom of religion is protected by both the U.S. and California constitutions (U.S. Constitution, First Amendment; California Constitution, Article 1, § 4). In addition, religious beliefs are also protected in the employment setting by provisions of Title VII of the Civil Rights Act of 1964 (42 USC §§ 2000e-2[a][[1], 2000e[j]) and the California Fair Employment and Housing Act (California Government Code § 12940[a]-[d], [l]). If a religious belief is affected by an employer’s policy or practice, the employer is required to offer a “reasonable accommodation” if that can be done without “undue hardship.”

How Is a Claim for Religious Exemption Made?
The employer is not required to assume that a religious exemption applies. The employee will need to advise the employer of their religious objection to vaccination. The employer will likely provide a procedure for requesting an exemption. However, if it does not, the employee should submit a request in writing, signed and dated, to their supervisor and/or the Human Resources office. The employee should keep a copy as well.

How Does the Employer Determine the Validity of the Requested Exemption?
As mentioned above, a religious exemption must be based on a “sincerely held religious belief.” To support a religious exemption claim, the belief must satisfy two standards: 1) it must be “religious,” and 2) it must be “sincerely held.” With respect to the first factor, a religious belief can be shown if the individual is a member of a formal religion that includes that belief as one of its tenets. There are only a very few religions that are opposed on religious grounds to vaccination (e.g., Christian Science, Dutch Reformed Congregations), and in fact, most of the major religions encourage their members to obtain the COVID-19 vaccine. However, the fact that the religion to which an individual belongs is neutral or even supportive of vaccination of its members is not necessarily determinative of whether the individual’s opposition to vaccination is religiously based.
California and several other jurisdictions have utilized a three-part test to determine whether a belief pertains to a religion, which was set forth in Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3rd Cir. 1981): “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion can often be recognized by the presence of certain formal and external signs.” See also Friedman v. Southern California Permanente Medical Group, 102 Cal.App.4th 39, 2002 (California Court of Appeal adopts the Africa test).
However, an individual does not even have to be affiliated with a religious group in order to claim a religious belief or, for that matter, even espouse a belief in God. A belief is “religious” if it is a sincere and meaningful belief that “occupies a place in the life of its possessor parallel to that filled by … God” (United States v. Seeger, 380 U.S. 163, 166 [1965]). Thus, moral or ethical beliefs about what is right and wrong held by the individual, with the strength of traditional religious beliefs, can themselves be religious beliefs. It must be noted, however, that social, political or economic philosophies, or mere personal preferences that are strongly held but do not relate to life, purpose or death, are not typically regarded as religious beliefs (Fallon v. Mercy Catholic Medical Center of Southeast Pennsylvania, 877 F.3d 487, 492 [3rd Cir. 2017]). See also Brown v. Smith, 24 Cal.App.5th 1135, 1144 (“A belief that is ‘philosophical and personal rather than religious … does not rise to the demands of the Religion Clauses [of the U.S. Constitution]’”).
Determining whether a belief is sincerely held is largely a matter of credibility. While “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance” (Grayson v. Schuyler, 666 F.3d 450, 454-5 [7th Cir. 2012]), “[e]vidence tending to show that an employee acted in a manner inconsistent with his professed religious belief is, of course, relevant to the [employer’s] evaluation of sincerity” (brackets added) (EEOC v. Union Independiente De La Autoriadad De Acueductos, 279 F.3d 49, 57 [1st Cir. 2002]). Thus, factors that might undermine an employee’s credibility include such things as: 1) whether the employee has behaved in a manner markedly inconsistent with their professed belief, 2) whether the religious belief involves a particularly desirable benefit that is likely to be sought for secular reasons, 3) whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit made for secular reasons) and 4) whether the employer otherwise has reason to believe the benefit is not sought for religious reasons (EEOC Compliance Manual on Religious Discrimination, Section 12: Religious Discrimination [2021] 12-I [A] [2]). In addition, a history of having previously undergone other vaccinations (at least as an adult) could adversely affect the sincerity determination by the employer.
The employee should carefully consider whether their opposition to vaccination is based on a “sincerely held religious belief.” An employee seeking a religious exemption based on a belief that is not part of a
recognized religion should expect that such claim will be closely scrutinized by the employer, and if the employer were to determine that this belief is not religious, such a determination could have adverse consequences well in excess of ultimately being required to submit to vaccination. Previous comments made to co-workers or supervisors that indicate that the employee’s opposition is other than religious (i.e., that the vaccine doesn’t work, that it is harmful, that the government doesn’t have the right to require vaccination, etc.) can be used by the employer to deny the exemption. Furthermore, the evidence refuting the religious basis might even be sufficient to support an allegation that the employee was dishonest in claiming a religious exemption in the first place, which could result in discipline, including termination. So careful thought should be given to information that both supports and refutes a religious belief claim.

What Happens if the Request for Religious Exemption Is Approved?
If the employer determines that a claim for exemption is based on a sincerely held religious belief, then the employer has a duty to determine if a reasonable accommodation of that belief (i.e., that vaccination is not required) exists. A reasonable accommodation is one that does not impose an “undue hardship” on the employer. What are “reasonable accommodations” in mandatory vaccination situations? The EEOC has indicated that they might include such things as requiring the wearing of a face mask, working at a social distance from co-workers or non-employees, working a modified shift, getting periodic COVID-19 tests, working remotely or accepting a reassignment (see EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Technical Assistance Questions and Answers, Updated on May 28, 2021, Question K.2).
If there are multiple reasonable accommodations available, the employer gets to choose which one to use. However, reasonable accommodations are not “one size fits all” situations, and whether there are any adjustments that will satisfy the health and safety concerns of the employer regarding unvaccinated employees remains to be seen. If the employer determines that there is no acceptable alternative, the employee may be faced with submitting to vaccination or finding a new job.
Horvath v. City of Leander, 946 F.3d 787 (5th Cir. 2020), is illustrative of the reasonable accommodation process. In that case, the city of Leander, Texas, instituted a mandatory vaccination process (a TDAP vaccination for tetanus, diphtheria and pertussis) for certain of its employees, including Mr. Horvath, who at the time was employed in the fire department as a driver/pump operator. Horvath requested a religious exemption from vaccination, which was accepted by the city. The city then offered him two alternative accommodations: 1) he could be reassigned to the position of code enforcement officer, which offered the same pay and benefits but did not require vaccination (and the city would cover the cost of his training for that position), or 2) he could remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases when his health condition justified and keep a log of his temperature. Horvath declined the code enforcement job and suggested an alternative accommodation for keeping his current job that would have limited the situations in which he was required to wear the respirator. The fire chief refused to renegotiate, and when the deadline for choosing one of the city’s accommodations or getting vaccinated passed, Horvath was terminated for insubordination.
The U.S. Court of Appeals for the Fifth District held in favor of the employer, noting that the code inspector position constituted a reasonable accommodation. (Interestingly, the court took no position regarding the accommodation that involved wearing the respirator.) The Court of Appeals also held that the city was not required to accept Horvath’s alternative accommodation proposal and that his firing was not the result of his asserting a religious objection to vaccination, but rather his refusal to obey a direct order by failing to select an accommodation.
The lesson from the Horvath decision is that a determination that the employee has a sincerely held religious belief does not entitle them to a menu of various accommodations. If there are multiple accommodations, the employee has no right to choose the one that works best for them. Furthermore, the refusal to accept a reasonable accommodation, chosen by the employer, can be grounds for termination.
Finally, there is no guarantee that there will even be one reasonable accommodation available that does not impose “undue hardship” on the employer. An employer does not have to provide a reasonable accommodation that would cause an undue hardship to the employer. An undue hardship must be based on a showing that a specific reasonable accommodation would cause significant difficulty or expense (Government Code § 12926 [u]).

In summary, an exemption for religious beliefs is available in situations involving employer-mandated vaccination programs. But this is a narrow exemption, and an individual should do a lot of soul-searching before deciding to request one.

About the Authors
Gary M. Messing is a partner and founding member of the law firm Messing Adam & Jasmine LLP, which predominately represents public-sector unions and their members in labor relations. He has been representing labor unions, peace officers, firefighters and other public-sector employees throughout California for over 40 years. He is also a PORAC LDF panel attorney.
James W. Henderson Jr. has been an attorney with Messing Adam and Jasmine LLP since its inception, and prior to that was with the law firm of Carroll Burdick & McDonough LLP for over 35 years. His practice has focused on civil litigation with an emphasis on employment law. He has represented peace officers in various disciplinary matters, including internal affairs interviews, Skelly hearings and termination appeals. He also works as a mediator in court proceedings.