The Volokh Conspiracy
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For the fall, many universities are requiring students and employees to be vaccinated to return to campus. Last week I wrote about some of the policy concerns with such mandates. Here, I will flag some legal concerns. There is some portion of the population who will not receive the vaccine for religious reasons. For example, some Christian Scientists may decline to receive the vaccine. The New York Times discusses many evangelical Christians who may oppose the vaccine. And I'm sure there are others.
Will Universities systematically exclude people with faith-based objections to the jab? At least students may be offered the opportunity to stay on Zoom. But employees who refuse to get vaccinated may not get that accommodation. Indeed, they may be terminated. Religious employees may seek a religious accommodation. But under current Title VII law, those accommodations are narrow.
In December, 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.
At the time, I predicted that TWA was on the chopping block. Alas, yesterday, the Court denied review in a case to reconsider TWA v. Hardison. Two (and probably three) Justices would have granted cert. That decision may prove significant. People of faith will now have little choice: follow employer vaccine mandates or risk losing employment.