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How to Protect the Public from Vaccine Objectors

Striking a balance between individual rights and the overall interest in public health.
September 14, 2021
How to Protect the Public from Vaccine Objectors
(Photo Illustration by Cezary Kowalski/SOPA Images/LightRocket via Getty Images)

On September 9, President Biden announced sweeping new workplace vaccine mandates. To protect the country from the COVID-19 pandemic, he seeks to compel federal workers and employees of large private companies to get vaccinated or be tested weekly. Americans support such workplace mandates by 54 to 46 percent.

The Republican reaction to Biden’s plan, and particularly to the mandate on large private companies, showed how anti-vax hypocrisy is now the norm among GOP politicians. Governors Greg Abbott of Texas, Kay Ivey of Alabama, Henry McMaster of South Carolina, and Tate Reeves of Mississippi all lambasted the mandate. Montana’s Greg Gianforte tweeted that the mandate is “unlawful and un-American.”

But all fifty states, including those with Republican governors and Republican-controlled legislatures, require vaccinations for schoolchildren. Mississippi proudly boasts of leading the nation in implementing that mandate: More than 99 percent of Mississippi students have received the standard vaccines for mumps, measles, diphtheria, and so on.

The New York Times reports a surge in vaccine resisters who rest their opposition on religious grounds and seeking exemption. Remarkably, on September 10, Liberty Counsel, a right-leaning Christian legal-advocacy organization, sued New York state for mandating that health care workers get vaccinated and for allegedly disallowing such exemptions. And conservative clergy are writing letters in support of those seeking to be excused from mandates based on claims of religious belief.

Some consumer-based companies are treating vaccine resistance on any basis as a threat to their business. United Airlines announced that, for the time being, any employee excused from vaccination will need to go on unpaid leave.

In our view, there is no basis for a religious exemption from vaccine mandates. Under a 1977 Supreme Court case, Trans World Airlines v. Hardison, all an employer needs to show under Title VII of the 1964 Civil Rights Act in order to overcome a claim of religious discrimination is that the accommodation sought by the worker imposes a de minimis burden on the employer’s business. The alternatives to vaccination—erecting shields, requiring social distancing and universal masks as well as regular testing to protect coworkers, customers, and others from a known health risk—impose a more than de minimis burden. And again, it is worth remembering that Biden’s new workplace mandate gives the option for weekly negative test results in the case of an objection to vaccination.

This policy is not an invitation to governmental overreach. It is reasonable response to a demonstrable, grave threat to both worker safety and in this case, public health.

Notably, the Supreme Court made clear in Hardison that it would not give preference to religious claims over other important public policy. Since 1905, Supreme Court precedent has recognized the critical public policy that vaccinations against pandemics reflect: protecting public health.

Under such precedent, claims for a religious exemption from governmental or private COVID vaccination requirements should not be sustained. The fact that some states recognize religious (or philosophical) belief exemptions from universal vaccination mandates as to childhood diseases now under control does not mean that exemptions are required at the federal level, especially amid a still-raging pandemic. In 2019, New York even eliminated its religious exemption for childhood vaccination mandates. Mississippi doesn’t recognize such exemptions either, which is one reason its school vaccination rates are so high.

Because Biden’s COVID order excludes companies with fewer than 100 employees, there is an important step that OSHA, the Occupational Safety and Health Administration, should immediately take.

The agency already requires that “It’s the Law” posters be displayed for other purposes. Those posters affirm workers’ right to a safe workplace. A vaccine-notice mandate for companies with fewer than 100 employees or companies where vaccine objectors prefer weekly testing would build on that practice and benefit not only resisters’ fellow employees but also customers and other business invitees such as suppliers.

The required notice might say “This business does not require employees to be vaccinated against COVID-19” or “This business requires employees to be vaccinated against COVID-19 unless they assert a religious or other basis for exemption.”

Such a notice would strike a reasonable balance between individual rights and the overall interest in public health. Companies may lose or gain business as a result, but it will be their call whether to place on leave or fire those employees who refuse vaccination or claim exemption—or not employ them in the first place. Consumers and others who deal with businesses should at least be able to know if they are entering a place of business where their health may be put at risk.

The current Supreme Court majority may, contrary to the Hardison precedent, indulge a preference for religious belief over other important public policies. If the Court were to invalidate a notice mandate of the kind we propose, it would be another disturbing sign of how far the conservative majority has drifted from the mainstream. That drift helps feed the increasingly vocal calls to reform the Court, resulting in proposals like those now before the President’s Commission on the Supreme Court.

Dennis Aftergut and Eugene R. Fidell

Dennis Aftergut is a former federal prosecutor and former chief assistant city attorney in San Francisco. Eugene R. Fidell is an adjunct professor of law at New York University and of counsel at Feldesman Tucker Leifer Fidell LLP.