Anti-vaccination sentiment has been growing in the United States for decades resulting, for example, in elevated rates of measles. It’s therefore no surprise that official encouragement of vaccination against Covid-19 has been met with resistance in many quarters. As in the case of other vaccines, opponents spin theories of harm that experts consider fanciful.
But the campaign against Covid-19 vaccination differs from other anti-vaccination movements; it has to contend with vaccine mandates from some employers. Failure to be vaccinated, or to submit to weekly tests and mask requirements, can result in loss of employment. Can people with religious objections to the vaccines avoid such consequences?
Religious objections rest on the use by vaccine developers of research that employed stem cells from aborted fetuses. These vaccination opponents claim that they have a religious objection to abortion and therefore reject the fruits of research that benefited from abortion.
The free exercise of religion is guaranteed in the First Amendment to the Constitution. In response to a Supreme Court decision that many people deemed insufficiently protective of religious freedom, Congress passed the Religious Freedom Restoration Act (1993), which disallows any government entity to “substantially burden a person’s exercise of religion” unless “a compelling government interest” justifies the burden. Even then, the burden on free exercise must be kept to a minimum.
Using this standard, the Supreme Court decided in 2014 that Hobby Lobby Stores didn’t have to provide insurance that included coverage for birth control, as required by the Affordable Care Act, because among the 20 methods of birth control that the Act allows, 4 may sometimes kill a fertilized human egg. The owners of the stores consider this abortion, which they object to on religious grounds. As I reported in a previous blog, a key element in the Court’s opinion was the fact that all women who work for Hobby Lobby would get the full range of birth control options free of charge just as they would if their employer had provided the insurance in question. It was a “no harm, no foul” decision.
But those seeking a religious exemption from vaccine mandates want to skirt an employer’s requirement, not a government rule. Employers, including employers who are government entities, are free in most jurisdictions to employ and fire whomever they want, so long as the people hired have required credentials for the job, and the employer doesn’t discriminate against employees on the basis of sex, race, national origin, sexual orientation, or religion. Does imposing a vaccination requirement on employees with religious objections constitute a violation of the Religious Freedom Restoration Act (RFRA)?
Congress considered this act to be a restoration of the constitutional standard that the Court had recently abandoned. But the previous standard that the act restores was considered in 1961 to allow the government to require all businesses to close on Sundays in order to have a universal day of rest even though this burdened the religious observance of Jews whose sabbath was on Saturday, and who therefore wished to do business on Sunday. If a uniform day of rest was considered a “compelling government interest,” so is stemming the tide of Covid-19 infections. Through October 2021, the virus has killed Americans at the rate of 450,000 per year.
This right of the government to require vaccination of its employees shouldn’t be confused with government attempts to use a regulation of the Occupational Safety and Health Administration (OSHA) to require private businesses with 100 or more employees to mandate vaccination. This government directive rests on shaky legal grounds. Government requirements regarding its own employees, by contrast, are solidly grounded.
Similar requirements by private employers are also legally protected. Supreme Court precedents don’t support the claim that employees have a right to retain their jobs when they violate employer mandates that conflict with the employees’ religious convictions. In Sherbert v. Verner (1963) the Court ruled that an employee, a Seventh-Day Adventist who was fired for her refusal to work on Saturday, was entitled to unemployment compensation. But it didn’t question the right of the employer to fire her.
Both government and private employers may be required to offer employees with objections to vaccination (regardless of the employees’ reasons for objecting) an alternative way of retaining their jobs, such as weekly tests for the illness combined with continuous mask wearing at work. Employers need not pay for the tests, which could be costly when not be covered by insurance. Religious freedom mustn’t be heavily burdened, but no one expects it to be free of personal cost.
In sum, employees can’t escape through religious objections employer requirements designed to reduce the spread of Covid-19, even if they can avoid vaccination by incurring the burdens of regular testing and continuous mask wearing at work.
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