A Decision on Religious Vaccine Exemptions

            Last week’s column left you with a cliffhanger.
            Alas, just seven days later, I can tell you how the cliffhanger has resolved.
            You may recall if you read last week’s scribbles that I told you about a case in New York state before a federal judge in Utica. The court was hearing a complaint for an injunction by a group of healthcare workers who argued that even where the state of New York was mandating vaccinations for all healthcare workers, it was still required to offer reasonable accommodations to those who refused the vaccine for religious reasons.
            New York, unlike Connecticut, specifically prohibited religious exemptions in its mandate, leading to the lawsuit. Earlier this year, when Andrew Cuomo was still governor, his mandate allowed for religious exceptions.
            But then Kathy Hochul came riding into town as Cuomo’s replacement and, like the good liberal she aims to be, immediately rescinded the religious exception from her own Hochul Mandate.
            In mid-September, the judge issued a temporary restraining order stopping the mandate’s prohibition on religious exemptions. Then, after a full evidentiary hearing, he issued his decision on an injunction last Tuesday morning.
            The judge decided in favor of the employees, ruling that federal law under Title VII requires employers to make reasonable accommodations for those who have a medical or religious reason for refusing the vaccination.
            The decision was important because if federal courts determined that Title VII did not allow for these exemptions, the floodgates would likely open, allowing employers to terminate employees who refused the vaccine on religious or medical grounds.
            As I have said many times, I believe that just about everybody should get the vaccine. I think it is the only way out of this mess. But I also believe in the law, and I think, like the federal judge in Utica, that the law as written requires that reasonable accommodations be made for religious objectors and for medical necessity. Unless the law changes, and I don’t think it should, those exceptions should be available.
            Governor Hochul, of course, intends to appeal the decision.
            In the meantime, the court’s decision goes along with the parameters that other states like Connecticut are following. That is, where an employee asserts a sincerely-held religious belief and seeks to be exempt from a vaccine mandate, the employer and employee must thereafter engage in a discussion about whether or not a reasonable accommodation can be provided by the employer without causing undue hardship.
            The obvious accommodation is what we have routinely seen throughout the pandemic. One would expect that, for those who refuse the vaccine for religious or medical reasons, mask-wearing, regular testing, and social distancing would be the appropriate reasonable accommodation. And because those precautions have been routinely used throughout society from the beginning of the pandemic, it is hard to see how those types of accommodations would lead to undue hardship for an employer.
            Of course, there will remain questions about who pays for the regular testing. If paying for the test results is an undue hardship to the employer, then I could see a court requiring the employee to pay for it. But if payment for the test can be borne by the employer as a regular cost of business – possibly covered by governmental COVID relief funding previously provided to the employer – then a good argument could be made for the employer to pay for the testing.
            As with all that is associated with this pandemic, the law will continue to evolve. I will continue to be fascinated by the questions.

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