As for religious exemptions, various states and courts have taken different positions. A state statute in Florida, Section 1003.22(5)(a), requires public K-12 schools to exempt a student from vaccinations if "the parent of the child objects in writing that the administration of immunizing agents conflicts with his or her religious tenets or practices." However, some states do not provide for religious exemptions. For example, in Workman v. Mingo County Board of Education, the U.S. Court of Appeals for the Fourth Circuit held in 2011 that schools in West Virginia need not allow religious exemptions and the right to free exercise of religion does not include freedom to expose others to communicable disease. In 2016, a federal trial court ruled in Whitlow v. California Department of Education that "it is clear that the Constitution does not require the provision of a religious exemption" in schools.

Recent Mandates and Rulings

Several states or entities within those states, such as Maine, New York and Rhode Island, have recently adopted COVID-19 vaccine mandates for employees that do not provide for religious exemptions. The mandates are being challenged in litigation, partly because Title VII requires religious accommodations for employees "unless an employer demonstrates that he is unable to reasonably accommodate to an employee's … religious observance or practice without undue hardship on the conduct of the employer's business," and (relevant to government regulations) the First Amendment provides for free exercise of religion.

On Sept. 24, a federal court in Kentucky acknowledged in Beckerich v. St. Elizabeth Medical Center that exemptions from a hospital's COVID-19 vaccine mandate should be granted for hospital employees who had a sincere religious objection under Title VII.

On Oct. 7, the U.S. Court of Appeals for the Sixth Circuit in Dahl v. Board of Trustees of Western Michigan University held that student athletes were likely to succeed on their First Amendment claim that a university infringed on their right of free exercise of religion when it enforced a coronavirus vaccine mandate and ignored or denied requests for religious exemptions.

On Oct. 12, in David Sambrano v. United Airlines, the federal district court for the Northern District of Texas entered a temporary restraining order to keep the status quo while the court decides whether to issue a preliminary injunction precluding an airline from placing workers on indefinite unpaid leave for declining the vaccine. On November 8, in Sambrano v. United Airlines, Inc., the same court granted in part and denied in part the defendant's partial motion to dismiss; one plaintiff's claims were dismissed without prejudice.

On Oct. 14, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Maniscalco v. New York City Department of Education, case number 21-2343, where teachers and department employees seek exemptions from vaccine mandates.

On Oct. 19, the U.S. Court of Appeals for the First Circuit affirmed a trial court's denial of a preliminary injunction against Maine's COVID-19 vaccine mandate for health care workers, which does not provide for a religious exemption. Among other things, the appellate court in Does v. Mills, case 21-1826, found that the plaintiffs have not shown a likelihood of success on their Title VII claim because granting exemptions would cause the hospitals to suffer undue hardship.

One series of cases, all against Gov. Kathy Hochul of New York and other New York State officials, debated the enforcement of the vaccine mandate against healthcare workers who had religious objections to receiving the vaccine.

First, in Dr. A v. Hochul, 2021 U.S. Dist. LEXIS 177761, the District Court for the Northern District of New York granted the plaintiffs' request for a temporary restraining order and temporarily enjoined the State of New York from enforcing the vaccine mandate against the plaintiff healthcare workers. Then, in a case titled only A., 2021 U.S. Dist. LEXIS 199419, the Court granted the plaintiffs' motion for a preliminary injunction, meaning the state was again temporarily enjoined from enforcing the vaccine mandate as far as concerned the plaintiffs. The case was then consolidated with a suit from the Eastern District of New York where the group We the Patriots USA, Inc. had challenged the denial of a temporary injunction against the state. The consolidated cases were then renamed We the Patriots USA, Inc. v. Hochul.

Then, on Oct. 29, in We the Patriots USA, Inc. v. Hochul, 2021 U.S. App. LEXIS 32921, the Second Circuit Court of Appeals affirmed the Eastern District Court's order denying the requested preliminary injunction. The Northern District's decision granting a preliminary injunction against the State was vacated. The consolidated cases were remanded to the lower courts for proceedings consistent with the Second Circuit's ruling.

Finally, on Nov. 4, in We the Patriots USA, Inc. v. Hochul, 2021 U.S. App. LEXIS 32880, the Second Circuit again affirmed the order of the Eastern District of New York denying the preliminary injunction against the vaccine mandate. The Court also vacated the Northern District's grant of a preliminary injunction for a second time. The cases were remanded to their respective federal districts for consistent proceedings. On November 12, in We the Patriots USA, Inc. v. Hochul, 2021 U.S. App. LEXIS 33691, the Second Circuit issued a clarifying opinion that stated the injunction granted in Dr. A v. Hochul had been vacated and advised that the Court's opinion was based solely on the likelihood of success on the merits of the claims at issue, not the merits of the claims in and of themselves.

Confirming Sincerity

With respect to whether the sincerity of the asserted religious belief can be questioned, in August 2021, a federal district court in Harris v. University of Massachusetts found no problem with a state university's practice of seeking to verify the sincerity of students' asserted religious objections such as through a letter from clergy of a recognized religion. However, in Fallon v. Mercy Catholic Medical Center, the Third Circuit Court stated in 2017 that "no court should inquire into the validity or plausibility of the beliefs" of an employee; the court can only "decide whether the beliefs … are sincerely held and whether they  are … [indeed] religious" and not merely political, sociological, philosophical or medical in nature.

In 2002, in Boone v. Boozman, a federal district court in Arkansas struck down a statute that allowed for a religious exemption only for adherents or members of a "recognized church or religious denomination," in effect discriminating against a nonsectarian individual with a sincerely held individual religious belief against vaccination. Similarly, in guidance updated in January 2021, the EEOC has advised that Title VII protects more than the practices specifically mandated by an employee's religion; the proper inquiry under Title VII is only "whether or not the religious belief system is sincerely held" by the individual.

Conclusion

In view of this survey, it seems likely that federal district courts will continue to reach disparate conclusions about whether COVID-19 vaccine mandates must allow for religious exemptions and whether the sincerity of objectors can be questioned. Those cases will likely lead to appeals where various federal circuit courts reach different conclusions, creating a split of authority that could lead to review by the U.S. Supreme Court.

Robin Bresky is the founder and president of Bresky Law in Boca Raton, Florida. The firm handles appeals and provides litigation support, as well as estate planning, probate, and trust services.

Randall Burks is a senior associate with the firm.