With the impending issuance of regulations from the Department of Labor mandating employees of large employers and all federal contractors receive one of the approved COVID-19 vaccines, one particularly thorny question is how to determine whether an employee is subject to a religious exemption to the mandate. Must the liturgy of the employee’s religion expressly disavow all vaccines or will an individual’s idiosyncratic religious beliefs suffice?  And, who makes the decision whether the employee’s religion is an “accepted” one?  The recently filed case by a professor and student at the University of Colorado medical school provides a good illustration of the difficult decisions employers are being forced to make and the legal consequences of their actions.

In Jane Doe, MD. v. The University of Colorado, filed in the United District Court for the District of Colorado in October 2021, Jane Doe, a pediatrician and devout Catholic employed by the  University, and John Doe, a first-year student and Buddhist enrolled at the University’s medical school seek a temporary injunction against the University to prevent enforcement of the University’s COVID-19 Vaccination Requirement and Compliance Policy.  The lawsuit was one of several filed across the country by the Thomas More Society, a conservative Chicago-based law firm actively engaged in using the courts to shape social issues. Among other causes, the Society created the Amistad Project to file lawsuits to contest the results of the 2020 Presidential election.

The University’s policy requires all students, employees, and other individuals who have or may have in the future access to the medical school’s facility or who interact with the school’s community to be vaccinated against COVID-19 with a vaccine approved by the Word Health Organization.  There are two exemptions to the Policy: medical and religious.  For a medical exemption, an individual does not need to obtain a vaccine if the vaccine is contraindicated due to other medical conditions or a physical condition that would cause the vaccine to endanger the individual’s life or health.  For a religious exemption, the individual must subscribe to a religious belief whose teachings are opposed to all immunizations.

Jane Doe, MD refused to receive a COVID-19 vaccine on the basis that the three vaccines approved for use in the United States, Pfizer, Moderna and Johnson & Johnson, used abortion-derived cell lines in one or more phases of developing the vaccine.  Dr. Doe alleges that she is following the advice of the Roman Catholic bishops of Colorado, who have issued a letter stating that vaccines are voluntary and that there is a moral obligation to refuse certain vaccines created using human cell lines derived from abortion unless no other alternatives are available and the intent is to preserve life.  Dr. Doe claims that the University’s allegation that it would be an undue hardship to accommodate her is pretextual in that Dr. Doe has cared for patients for the past 19 months despite the availability of the vaccines for at least 9 of those months.

Dr. Doe alleges that the University’s Policy in tandem with its refusal to grant her a religious exemption would prevent her from practicing pediatric medicine in the two largest cities in Colorado, Denver and Colorado Springs.  In February 2019, Dr. Doe signed a covenant not to compete with the University that prevents her from competing with the business of the University within a 100 mile radius of the University’s Denver campus. The covenant would require Dr. Doe to pay the University $310,950 in liquidated damages if her employment with the University terminates for any reason and she competes with the University.

John Doe refused to receive a COVID-19 vaccine on the basis of his personal interpretation of Buddhist precepts that (1) the power of the mind to heal the body is disrupted by vaccinations, (2) medications should be limited and taken only for afflictions one is presently suffering, and (3) the involvement of killing or harming animals in vaccine development is unethical.  John Doe claims his last vaccination was in 2016 and caused him such internal struggle that he vowed never to go against his interpretation of Buddhism again.

John Doe alleges that the University’s failure to grant him a religious exemption will require that he reapply for medical school somewhere else. Under current guidelines, medical students can request a transfer only of they can document an “entire academic history” at an existing medical school.  Since John Doe is a first-year student, he does not have an “academic history”, and according to his interpretation of the guidelines, would need to reapply afresh to medical school, a daunting and less-than-certain prospect.

The University denied Dr. Doe’s request for religious exemption on the basis that the Catholic Church does not oppose all immunizations.  It denied John Doe’s request in the basis that his beliefs were “personal” and not part of a comprehensive system of religious beliefs.

The lawsuit seeks to invalidate the University’s policy on the basis that it violates Dr. Does’ and John Doe’s First Amendment rights to the free exercise of religion, essentially establishes a state religion by requiring teachings of organized denominations with a comprehensive system of religious beliefs, violates the due process requirements of the Fourteenth Amendment, and violates the religious freedom clause of the Colorado constitution.

The Colorado lawsuit seemingly takes aim at the “reasonable accommodations” an employer must make to accommodate religious beliefs.  In the 1977 United States Supreme Court case of TWA v. Hardison, the Court set a very low bar for “reasonable accommodations” under Title VII of the 1964 Civil Rights Act, stating, “it would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant than an employer must deny the shift and job preferences of some employees as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others”.  It is unclear whether courts will view the University of Colorado’s COVID-19 vaccine mandate through the same narrow prism as imposed by the Hardison court.

Regardless of how the Colorado court rules, the vaccine mandate places employers on the front line of determining whether a claim for religious exemption is legitimate, whether the religion is or should be recognized, whether an exemption is warranted, and what constitutes a “reasonable accommodation”.  These are incredibly difficult questions to answer even in the absence of a global pandemic.  And as the suits filed by the Thomas More Society indicate, no matter the employer’s decision, a legal challenge is likely to follow.

The attorneys in our Austin and Dallas office are available to answer any questions you may have about the employment implications of  COVID-19 and the impending vaccine mandates.  Please contact us at info@gstexlaw.com.

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