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Religious Suits Over Covid Shots Reveal Edge for Private Sector

Sept. 21, 2021, 10:08 AM

Companies have broad power to overcome religious objections to Covid-19 vaccine mandates while an early ruling shows potential limitations to government authority to require the shot.

A federal judge issued a temporary restraining order last week blocking the New York State Department of Health from interfering with employers granting religious exemptions to its vaccine mandate. A group of health-care workers brought a constitutional challenge against the state’s mandate, which calls on hospital and nursing home employees to get a first vaccine dose by Sept. 27.

Even though federal anti-bias law requires companies to accommodate workers’ religious objections to vaccine mandates, the U.S. Supreme Court’s 1977 decision in TWA v. Hardison gives them the leeway to deny such exemptions if they would impose more than a trivial burden on their operations.

“Right now, Hardison really is a barrier to protect what could be important private sector policies on vaccines,” said Frank Ravitch, a law professor at Michigan State University who’s written extensively on law and religion. “Employers could always say allowing Covid to spread is an undue burden.”

The interplay between protections for religious vaccine objections in the private and public sectors takes on added importance as the federal government readies a regulation to force large employers to require their workers to get inoculated against Covid-19 or submit to regular testing.

The federal employer vaccine mandate rule is expected to face legal challenges based on the Occupational Safety and Health Administration’s authority to issue temporary standards in response to emergencies. Although the Biden administration indicated the regulation would provide for religious exemptions, litigation over state mandates raises the specter of faith-based legal challenges to the federal rule.

Governments must abide by the U.S. Constitution’s safeguards for the free exercise of religion, something that doesn’t apply to companies in the private sector, legal observers said. The U.S. Supreme Court raised the bar on those protections with rulings on pandemic restrictions on crowd levels in houses of worship.

Depending on how it’s written, the OSHA rule also could draw allegations from workers—or closely held corporations with religious ownership—that it violates the Religious Freedom Restoration Act, said Nathan Chapman, a law professor at the University of Georgia who focuses on religion. That law allowed a company to deny its workers the Affordable Care Act’s health coverage for contraception based on the religious objections of the employer’s owners, the Supreme Court said in its 2014 decision in Burwell v. Hobby Lobby.

But the option for employers to require testing instead of vaccination complicates how an RFRA claim might play out, Chapman said.

Litigation on State Mandates

Health-care workers in New York and Maine filed lawsuits claiming their states’ vaccine mandates violate the constitution and nullify their right to seek religious exemptions under Title VII of the 1964 Civil Rights Act.

While the Maine case is being briefed, workers challenging the New York mandate scored an early win with the Sept. 14 temporary restraining order. However, U.S. District Judge David Hurd didn’t provide his reasons for barring the state Department of Health from enforcing the mandate when individuals have claims for religious exemption.

Some legal scholars said Hurd might have reacted to Supreme Court decisions on houses of worship, saying that the government can’t disadvantage religions, given that the New York mandate allows for disability-related exceptions but not those based on religious objections.

But Douglas Laycock, a University of Virginia law professor who specializes in religious liberty, said there’s no legal basis for the judge’s order. It may be an example of a “politicized judiciary getting caught up in the moment,” Laycock said.

New York Gov. Kathy Hochul (D) is “doing everything in her power to protect New Yorkers and combat the Delta variant by increasing vaccine rates,” spokeswoman Hazel Crampton-Hays said in a statement. “We are considering all of our legal options to keep our communities safe.”

Private-Sector Leeway

Even as courts consider faith-based challenges to government mandates, some private companies appear to be utilizing their latitude to rebuff religious objections in their vaccination requirements.

The health insurance costs alone for a coronavirus infection should satisfy the threshold for undue burden from Hardison, let alone the possibility that a business should have to shut down for quarantine, Laycock said.

United Airlines Holdings Inc., for example, will require workers with religious exemptions from its vaccine mandate to take an unpaid leave of absence if their jobs are customer-facing, such as flight attendants and customer service representatives. The company said the mandate was necessary to protect customers and employees after a surge in infection rates and hospitalizations nationwide.

United spokeswoman Leslie Scott said the company is processing accommodation requests on a case-by-case basis.

The airline’s unpaid leave requirement for religious objectors probably passes muster under the Hardison standard, said Chapman, the University of Georgia professor.

But Steve Crampton, senior counsel for the Thomas More Society, the conservative public interest firm that represents the health-care workers suing in New York, said United’s treatment of religious objections is legally vulnerable. Putting workers on unpaid leave could be tantamount to forcing them to quit and a dodge of the company’s duty under Title VII, he said.

“I’d take that case,” Crampton said.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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