It’s unclear exactly how these religious exemptions—and all the complexities that come with them—will unfold in the courts. Laws vary from state to state, and even the federal government is playing catch-up. “An agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice or observance,” the government said in its guidance for federal employees on the Biden administration’s recent mandate for most federal workers. The guidance said that agencies can consider “the basis for the claim” when considering exemptions, as well as the effect on job duties and workplace safety. “Additional guidance on legally required exceptions will be forthcoming,” it conspicuously added.
Private sector workers are not technically under a federal vaccine mandate even after the Biden administration’s high-profile announcement earlier this month. The expected Occupational Safety and Health Administration rule will simply require companies with more than 100 employees to test unvaccinated workers on a weekly basis. The rule is expected, however, to pressure companies to impose vaccine mandates of their own. In a lengthy rundown of Covid-19 policies and practices earlier this year, the Equal Employment Opportunity Commission said that federal anti-discrimination laws like Title VII do not generally bar companies from imposing vaccine mandates on their workers.
At the same time, the EEOC explained that companies must provide reasonable accommodations to workers who request a religious exemption to the Covid-19 vaccine unless it would pose an “undue hardship” for the employer. “However, if an employee requests a religious accommodation, and an employer is aware of facts that provide 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,” the EEOC noted.
The Supreme Court, for its part, has not taken up a case on religious exemptions to vaccine mandates. Jacobson v. Massachusetts, the seminal 1905 case where the justices upheld an anti-smallpox mandate in Cambridge, centered on medical objections to the vaccine instead of spiritual ones. Perhaps the most notable instance in which the high court brushed against the issue came in 1992, in Employment Division v. Smith, where the court rejected Free Exercise Clause challenges to what it described as “neutral laws of general applicability.” That case involved a challenge by two Oregon men to a state law that denied them unemployment benefits for using peyote, which has sacramental uses in the Native American Church.