The Volokh Conspiracy

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Can Private Employers Mandate COVID Vaccines?

The scope of religious exemptions, based on TWA v. Hardison, may be in flux.


The EEOC released guidance stating that private employers can generally mandate that employees get the COVID-19 vaccine. There are two likely types of exemptions. First, there may be some disability-related justifications that would exempt a person from a vaccine-mandate. Second, there may be some religious-related justifications that would exempt a person from the vaccine-mandate. EEOC offers this FAQ:

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee's sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined "undue hardship" under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Here, EEOC is relying on TWA v. Hardison (1977). Justice White's majority opinion found that religious exemptions that create "more than a de minimis cost" are an "undue hardship," and need not be granted. But this precedent may not be long for the world. In Patterson v. Walgreens, Justices Alito, Thomas, and Gorsuch signaled they wish to revisit Hardison. And I am aware of at least one petition that squarely presents this question: Dalberiste v. GLE Associates Inc. The case was initially distributed for conference on 10/9, and has been rescheduled three more times. Perhaps a Justice is preparing another dissent from denial. Or there is some chicanery behind the scenes over whether to grant this term. If Justice Barrett is willing to give a courtesy fourth, the Court could decide the issue this year.

If the Court overrules Hardison, Justice Gorsuch would vote to reverse a precedent authored by his former boss. I am not aware of a Justice who has expressly voted to nullify a precedent his former employer wrote. The closest example I can think of is Dames & Moore v. Regan, in which Justice Rehnquist watered down Justice Jackson's Youngstown framework. Perhaps Gorsuch and Kavanaugh will one day reverse a Kennedy precedent. Or ACB could overrule a Scalia precedent. I don't think there are any Goldberg or Marshall precedents on the chopping block for Breyer or Kagan.