In what may be a test case for many U.S. companies, United Airlines is pushing back on religious exemptions for the COVID-19 vaccine by warning that employees who are granted one will face unpaid personal leave starting next month.
United Airlines Will Test Limits Of Vaccine Religious Exemptions Through Mandatory Unpaid Leave For Unvaccinated Employees
United’s bold move comes as the September 27th deadline approaches for all employees to be fully vaccinated or terminated. U.S. law provides two potential exceptions to an employer-issued vaccine mandate; one for religious reasons and the second medical reasons.
The issue was discussed during a recent employee town hall meeting. After listing statistics about vaccine efficacy and noting that more than half of the employees who were unvaccinated when the requirement was announced are now vaccinated, United says that unvaccinated workers will not be welcomed in the workplace:
“Given the dire statistics listed above, we can no longer allow unvaccinated people back into the workplace until we better understand how they might interact with our customers and their vaccinated coworkers.”
Employees in non-customer-facing roles will be allowed to return to work in October when a new weekly testing protocol is established. Masks will also be required at all times. But employees in customer-facing positions like pilots, flight attendants, and gate agents will be barred from work for a longer time (“an official return to work date might be significantly later”). In fact, United is quite vague and open-ended in this regard:
“Once the pandemic meaningfully recedes, you will be welcomed back to the team on active status.”
Employees who are granted a medical exemption will be placed on medical leave. Employees who are denied a medical or religious exemption will have five weeks from the date of denial to become fully vaccinated or lose their jobs.
United Will Test The Legal Boundaries Of The Religious Exemption
The religious exemption stems from Title VII of the 1964 Civil Rights Act, which requires American employers to accommodate employees’ religious beliefs:
Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others….
Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.
Put simply – all sincerely-held religious beliefs are protected, even if you belong to a religion of one.
Next, the question shifts to undue hardship. There is an exception to the religious exemption if an employer suffers an “undue hardship” by making that exemption:
Title VII requires an employer, once on notice that a religious accommodation is needed, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden.
United will presumably argue that statistically-grounded concern over the health of its workers more than meets any “undue hardship” burden.
While most legal scholars agree and Employment Division v Smith remains the law of the land (a 1990 Supreme Court decision written by the late Justice Antonin Scalia holding that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment [i.e. religious freedom]), that decision has been whittled away by the conservative majority on the Court and is seen to be in danger of being overturned. That’s relevant, even though United is a private actor, because those displaced employees may try to collect unemployment and it will be up for states to decide whether to award that on the basis of a religious exemption.
Jacobson v Massachusetts, a 1905 case in which the Supreme Court upheld the authority of states to enforce compulsory vaccination laws, also remains on the books. This case also does not apply to United, but suggests a certain tolerance on the part of the Court for vaccine mandates.
My own assessment is that nearly 100% of the “religious exemptions” requests fall not based upon theological concerns (Christians, for example, have historically supported vaccines), but political concerns centering on mistrust of government. Nevertheless, the Supreme Court has shown great deference to religious freedom over the last year, even at the expense of competing rights, and it would not surprise me to see a 5-4 or 6-3 majority do so again in the context of vaccine mandates.
But someone has to draw the red line for the lawsuits to begin and it appears that is precisely what United is doing.
Unless United caves, the lawsuits will start coming in next month and there are already lawyers lining up to take the cases pro bono. United’s strong insistence on keeping the unvaccinated away from work marks a fascinating test case that could work its way all the way up to the Supreme Court.