Biden administration tightens rules on vaccine mandate exemptions

As the Biden administration prepares to implement COVID-19 vaccine mandates for federal employees and large businesses, new guidelines from the U.S. Equal Opportunity Employment Commission grant those employers greater flexibility to enforce them.

In newly updated “technical assistance” guidelines released Monday, the commission states that private employers who require their workers to be vaccinated against the coronavirus must consider employees’ religious accommodation requests but are not required to grant them if doing so would pose “undue hardship” on their businesses.

The EEOC defines undue hardship as a “significant difficulty or expense,” which it notes could incorporate not only the direct costs of accommodating the employees but also the “burden on the conduct of the employer’s business — including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.”

The decision to formally allow employers to deny religious exemption requests in certain cases is just the latest in a series of federal actions the Biden administration has taken in recent weeks in support of public health precautions. Putting the weight of the federal government behind employers trying to adjudicate religious exemption issues could help curb what experts have described as a brewing legal showdown over religious accommodations.

As the American Independent Foundation reported in August, when some private businesses first began to implement COVID-19 vaccine mandates for their workers, there were growing concerns about employees’ use of religious exemption requests to get around mandates, particular in cases where the requesters’ sincerely held beliefs were in question.

That reporting revealed that some workers had been purchasing religious exemption letters from online clerics, who for a fee would attest to the religious beliefs of individuals who wished not to be vaccinated.

The process by which employers worked to determine whether such requests were legitimate was “ripe for abuse and it allows for exploitation of the religious exemption,” Northeastern University School of Law’s Wendy Parmet told the American Independent Foundation at the time.

The new EEOC guidelines state that if an employer has an “objective basis” for questioning an employee’s accommodation request, “the employer would be justified in making a limited factual inquiry and seeking additional supporting information.” The commission notes that “objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as ‘religious beliefs'” — in other words, personal or political opposition to vaccines would not qualify an employee for an exemption.

The new guidance comes as the federal government is set to begin enforcing President Joe Biden’s vaccine mandates, which require most federal employees and contractors as well as employees of businesses with more than 100 workers to be vaccinated for the coronavirus or undergo weekly testing. That policy will be implemented by the Occupational Safety and Health Administration through a provision that grants the agency the ability to declare a new “emergency temporary standard” with the power to protect employees who face a “grave danger.”

OSHA in mid-October sent a draft of the new mandate rule to the White House, where it is undergoing legal and regulatory reviews before being formally adopted. Biden has said the policy would go into effect soon after those reviews are concluded.

Many businesses have started implementing mandates in advance of the federal requirement, however, and early data shows they have been highly effective at increasing vaccination rates among holdouts. United Airlines, for example, said that 99.5% of its employees had been vaccinated against COVID-19 after the company imposed a mandate, with fewer than 1% of its workforce being fired or resigning over the policy. Other companies and industries have seen similar results.

That hasn’t stopped many Republican leaders from stepping up to oppose the policy. Some, like Texas Gov. Greg Abbott, have signed executive actions aimed at banning mandates, though legal experts say they are likely doomed in the courts. Others have tried to expand jobless benefits to workers who are fired for not complying with mandates, and 24 Republican state attorneys general sent a letter to Biden threatening a lawsuit over his mandate policy.

Despite the political firestorm, the American public is mostly on board with vaccine mandates, with roughly 6 in 10 Americans backing the policy in a recent Gallup poll. Business leaders, too, have mostly supported the mandates, with several Texas corporations outright ignoring Abbott’s attempt to ban mandates in the state.

Though some industry groups recently wrote to the White House asking Biden to delay implementation of the mandates until after the holiday season, others have suggested Biden make his mandate policy even tougher by limiting the ways individuals can opt out.

“A rule that provides for widespread opt-outs by employees will not accomplish the goal of increased vaccinations,” an official with the National Restaurant Association wrote to the White House last month, according to Restaurant Business Magazine.

Published with permission of The American Independent Foundation.