On Friday October 29, the Supreme Court refused to grant an emergency request by a group of Maine health-care workers challenging Democratic governor Janet Mills’s August 2021 “emergency rule” mandating health-care workers in public and private institutions receive COVID-19 vaccines or be fired. The medical professionals in the case, titled John Does 1–3 v. Mills, have sincerely held religious objections to taking the COVID-19 vaccines because of their known link to aborted fetal cells in the vaccines’ testing or development. Maine’s vaccine mandate permits medical exemptions but, conspicuously, does not recognize religious exemptions. Maine’s flat denial of religious accommodations for employees is not only unusual, it is unlawful.
Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) require “reasonable accommodations” from workplace policies or job duties, based on religion and disability respectively. Vaccination mandates that are a condition of employment certainly trigger accommodation obligations under both laws. Because Maine appears to accept medical accommodations, I won’t focus on whether it complies with the ADA, but rather on the discriminatory choice to prefer medical over religious exemptions.
Under Title VII, employers are required to “reasonably accommodate” an employee’s religious beliefs, observances, and practices, unless an accommodation would create an “undue hardship on the conduct of the employer’s business.” To qualify, an employee’s objection must be religious in nature and sincerely held. An employer is not required to provide an un-reasonable accommodation and is not necessarily required to provide the employee’s preferred accommodation in all cases.
“Undue hardship” is not defined in Title VII. However, the Supreme Court in the 1977 case of Trans World Airlines, Inc. v. Hardison said it included “more than a de minimis cost.” By comparison, the ADA passed in 1990 explicitly defines “undue hardship” under its disability accommodation requirement as “an action requiring significant difficulty or expense.” It’s worth noting that three Supreme Court justices have signaled their willingness to “consider whether Hardison’s interpretation should be overruled,” which would likely result in the ADA standard applying to Title VII.
Because Maine health-care employers will be subject to potential loss of state licensing if they do not force vaccination on their employees, some argue it likely would be an undue hardship for them to grant religious accommodations in defiance of state law. Except federal law trumps state law when there is a conflict. The state cannot simply erase religious accommodations when federal law (and the constitution) demand that religious freedom be respected, and neither can employers. This is why the employees are suing the state and their employers for what they deem as an unlawful removal of religious exemptions in violation of their rights under federal law, specifically, the First Amendment and Title VII.
Let’s assume an employer with a COVID-19 vaccine mandate doesn’t want to bear the costs of a religious accommodation and determines that it need not provide one under Title VII’s accommodation provision. But failure to accommodate religion is not the only grounds for a religious discrimination claim under Title VII. Title VII also prohibits discrimination on the basis of religion in hiring, firing, compensation, terms, conditions, and privileges of employment. This means, generally, if a secular employer allows an exception or creates a benefit for secular reasons, they cannot discriminate against functionally similar conduct that is done for religious reasons. So, for example, if an employer grants a shift swap so an employee can attend her daughter’s soccer game, it must allow a similar swap for a Jewish father seeking to attend his son’s Bar Mitzvah.
Now apply this principle to vaccine mandates. Can an employer deny a request to work from home as a religious accommodation when the employer accommodates such requests made for medical reasons? The answer is no. Just like shift swaps, employers cannot provide less favorable benefits or privileges because of an employee’s religion when the impact on the employer’s operations would be functionally equivalent.
For states such as Maine that seek to prohibit religious exemptions to vaccine mandates, there are additional considerations under the First Amendment, a state Religious Freedom Restoration Act, or a state Free Exercise protection, all of which could require religious exemptions on their own. Dissenting from the Supreme Court’s denial to enjoin Maine’s vaccine mandate, Justice Neil Gorsuch, joined by justices Clarence Thomas and Samuel Alito, would have found that the mandate violated the federal constitution’s Free Exercise Clause because “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational.” As the unanimous Supreme Court said in Fulton v. Philadelphia, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”