In response to the ongoing COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has enacted an emergency standard requiring all businesses with 100 or more employees to ensure that their employees are fully vaccinated beginning on January 4, 2022. Alternatively, employers can test unvaccinated employees weekly beginning the same date.
However, following a series of court challenges and the U.S. Court of Appeals for the Fifth Circuit staying enforcement of the rule, OSHA has announced that it would stop implementing and enforcing the rule. Although OSHA stated that it remained confident of its authority to issue the mandate and the Department of Justice announced its intention to defend the rule vigorously, the federal government nonetheless is allowing the court process to play out before proceeding any further.
Religious and Secular Organizations Challenge OSHA Rule
Various religious institutions have filed at least four separate lawsuits seeking to bar enforcement of the federal mandate. In these lawsuits, the religious organizations claim that the federal mandate forces religious employers to violate their sincerely held religious beliefs. The mandate contains no faith-based exceptions. Meanwhile, several secular employers also have filed lawsuits to stop the law from going into effect as an impermissible overreach by the federal government.
A lottery resulted in the U.S. Court of Appeals for the Sixth Circuit being chosen as the court to hear the estimated 30 lawsuits filed across the country by both religious and secular organizations. One lawsuit pending in the U.S. Court of Appeals for the Fifth Circuit quickly resulted in a temporary court order putting the measure on hold until the appeal in that case is resolved, which it reaffirmed in a full decision a week later.
Religious Entity Arguments Against the OSHA Rule
Religious organizations are arguing that the federal government has no right to force their employees to get the vaccine, which threatens the autonomy of these organizations. The doctrine of church autonomy is based on the theory that religious entities have the right to determine their religious values. However, whether this argument will succeed is far from straightforward; all employers are subject to the same rules, not just religious employers. Moreover, allowing a religious entity this type of carve-out arguably would be similar to exempting religious organizations from complying with environmental pollution regulations.
Furthermore, they are arguing that the mandate forces employers to treat unvaccinated workers differently by requiring costly and bothersome testing and mask usage. They characterize these requirements as penalties for religious exercise. However, secular organizations also would distinguish between unvaccinated and vaccinated employees. It also may be more challenging to argue that testing or mask usage violates sincerely held religious beliefs, as opposed to vaccination.
Religious Exemptions to the OSHA Mandate
In addition to institutional challenges to the federal mandate, individuals have sought to challenge the mandates, and religious organizations have sued to stop similar state vaccination rules. For instance, the U.S. Supreme Court recently refused to require the state of Maine to add a religious exception to its state vaccination mandate for health care workers. The U.S. Court of Appeals for the Second Circuit ruled similarly in a lawsuit challenging New York’s state healthcare worker vaccine mandate.
Although employers can require employees to be vaccinated, including the COVID-19 vaccination, they must consider any requests for reasonable accommodations from disabled workers or those with sincerely held religious beliefs. The ongoing controversy over the COVID-19 vaccine and vaccinate mandates has led to a spike in requests for exemptions based on sincerely held religious beliefs. However, many employers have questioned the validity of their employees’ beliefs in claiming these exemptions.
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