As more employers impose vaccine mandates, a legal showdown over religious exemptions could be brewing, experts say.
Shortly after Philip Linssen, an ice rink owner in San Diego, decided to mandate COVID-19 vaccines for his employees, a letter appeared in his email inbox.
In it, a pastor attested to the "sincerely held religious objection to covid tests, masks, and vaccines" of one of Linssen's employees.
"[I]t is an affront to a Christian to inject their body with a man-made substance in an effort to 'improve' the immune system or insert a dubious object into one’s body to detect an asymptomatic illness," the letter read. "God has already created the body with mechanisms to detect and ward off disease."
Citing scripture, the pastor argued that mask-wearing was akin to Muslim veiling practices and that COVID-19 testing was "intrusive and unnecessary in the eyes of a Christian."
"I was furious," Linssen told the American Independent Foundation.
"A lot of people who are anti-vaccine that we talk to are relatively reasonable, they're willing to talk to me, we're willing to work out a compromise," he explained.
But there was practically "no chance" of finding common ground with this employee on the shots, Linssen predicted.
Linssen is part of a business community confronting the fallout of mandating a vaccine a third of the country has thus far refused to take. With more and more businesses following Linssen's approach, vaccine-hesitant employees are turning to new tactics to avoid getting their shots.
In anti-vaccine communities on Facebook, Reddit, and MeWe, activists urge their ranks to oppose vaccination by any means necessary, sharing intel on forthcoming mandates, holding workshops on how to request religious exemptions, and even selling exemption letters from clergy online.
After a cursory Google search, Linssen discovered that the letter he received was available for purchase via The Healthy American, a website run by anti-vaccine activists Peggy and David Hall, which features numerous videos and documents intended to help individuals bypass mandates.
One page highlights different packages interested consumers can purchase: the "basic," a $39 option which includes a personalized exemption letter from Pastor David, or the "concierge," which for $129 also features individual consulting calls with the Halls.
Data from the social media monitoring platform CrowdTangle reveals posts about the Halls' site have been liked, commented on, or shared over 50,000 times on Facebook, and have been mentioned or linked to nearly 40,000 times on Instagram.
Experts fear a legal firestorm may be brewing.
"It worries me that we're headed to some kind of showdown," said Wendy Parmet, a leading expert on public health law who teaches at Northeastern University School of Law.
"We really do not want to be at a situation where our employers are scrutinizing and testing our religious sincerity... We do not have an established religion and orthodoxy in this country. And yet, that is ripe for abuse and it allows for exploitation of the religious exemption."
A 'moral' obligation
Barring a legitimate medical excuse, religious exemptions are one of the only legal avenues objectors have to resist vaccine mandates.
But testing one’s religious sincerity poses a unique challenge for employers, especially as anti-vaccine individuals try to take advantage of the legal gray area.
"It all works out lovely and fine in a society where there's a lot of trust, where you're accommodating those people who have sincere religious beliefs," Parmet said. "But the problem is, in the world we live in now, it does open a door for people who are willing to be disingenuous."
Religious movements en masse have been very clear: no major denomination or sect directs its members to resist vaccines, and in fact, many religious groups and leaders have been on the frontlines of the vaccination drive, mobilizing parishioners to get the shot.
While some Catholics have expressed concern that some vaccine production uses fetal cell lines, the COVID shots don’t actually contain aborted fetal tissue and the Pope has called vaccination a moral obligation.
Mainstream religious rule, of course, has no bearing on whether employers should grant exemptions, experts say.
"It doesn’t matter what the Pope thinks, doesn’t matter what my church is telling me to do," said Robin Fretwell Wilson, a University of Illinois director who specializes in health law and biomedical ethics. "The only thing that matters is what I say I’m convinced about."
Still, the lack of organized religious opposition to the vaccine may call objectors' sincerity into question.
"There is not a mainstream large religious organization or Christian denomination that is telling people not to take the vaccine," Guthrie Graves-Fitzsimmons, a fellow with the Faith and Progressive Policy Initiative at the Center for American Progress, told The American Independent Foundation.
"The people that are telling people to not take the vaccine are fringe conspiracy theorists who maybe have some religious dust they sprinkle on top of that."
'None of your business'
Those who seek religious exemptions at work may do so under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on individuals' sincerely held religious beliefs and requires employers to provide "reasonable accommodations" to those seeking them, unless it would pose an "undue hardship" on the workplace.
In May, the Equal Opportunity Employment Commission released guidelines detailing how employers can gauge whether requests for COVID vaccine mandate exemptions are made in good faith.
Employers should assume that requests for accommodation are based on sincere beliefs, but if one has an "objective basis" for questioning the sincerity of beliefs, the employer would be "justified in requesting additional supporting information," according to the guidelines.
David Hacker is the director of litigation for the First Liberty Institute, a nonprofit which provides pro-bono legal services to individuals seeking religious accommodations, and spoke of the need for businesses to prioritize employees' spiritual health in addition to their physical wellbeing.
"If somebody comes to the employer and says, 'hey, this is going to cause me great spiritual damage if you require me to get this vaccine,' that's something that the employers should be taking very seriously, just as seriously as they are the physical health of the employees," Hacker argued.
But broaching the topic of religion in the workplace can be tenuous.
One business owner who operates several therapy centers for children with autism told The American Independent Foundation that she has already heard pushback about mandates from several employees with anti-vaccine beliefs.
When California officials recently required health workers to be vaccinated or formally request a religious or medical exemption, three workers immediately reached out to the business owner to say their religious beliefs prevented them from receiving the shots.
Asked what their sincerely held beliefs were, the employees told the business owner they were "none of [her] business," the owner, who asked to remain anonymous to discuss ongoing business matters, said in an email.
"It’s a tricky process," Dorit Reiss, a UC Hastings College of the Law professor who specializes in vaccine mandates, said of how employers should evaluate religious beliefs.
"At the end of the day, it’s going to privilege those that can lie well about this against people who have exactly the same belief, but are not a sophisticated liar or didn’t get the same advice."
A 'wild wild west'
As businesses navigate the thorny legal problem of assessing individuals' most closely-held beliefs, the fact remains: As more exemptions are granted, the risk of COVID-19 rises.
A 1999 study published in the Journal of the American Medical Association explored the prevalence of measles in students who were vaccinated versus those who received religious exemptions. The data showed that exemptors were on average 35 times more likely to contract measles than the vaccinated students.
Beyond the public health implications, there’s also the issue of bad actors exploiting vaccine polarization for a profit, just one part of an underground marketplace that emerged online during the pandemic, featuring everything from counterfeit vaccine documents to fake mask exemption cards.
"The fake vaccine cards, the misinformation, the fake cure-alls, all those things, it's a way to earn revenue that [individuals] can then use to support their activities," said Jay Kennedy, an expert in online counterfeiting who teaches at the school of criminal justice at Michigan State University.
The American Independent Foundation sent a detailed list of questions to the Halls, asking about their legal organization, finances, credentials, and more. They did not respond.
Some who claim to be seeking legitimate religious exemptions, meanwhile, see the Halls — and those patronizing their services — as detrimental to their own work.
"I don't want that to then hurt my chances of my request being accepted because everyone is just running for the corners," said Jae, a 30-year-old tech worker in Texas who requested only to use her first name for privacy reasons.
Asked about the online letters specifically, Jae was blunt: "I think that's garbage. It really pisses me off."
Jae hopes her employer will honor her request and allow her to continue working from home. Other accommodations could include requiring unvaccinated employees to wear masks and mandating frequent testing, experts said, but the determination of whether such accommodations are an "undue burden" is ultimately left to the employer.
Linssen, for his part, was ultimately able to convince his employee who requested the exemption to agree to wear a mask, and reassigned her to a job that required her to interact with fewer people.
But not all parties will be able to reach such agreements — and a wave of new court cases pitting employers and employees against one another could be on the horizon.
In the meantime, those looking to capitalize on the legal gray area may continue to operate with impunity.
"Until there's some type of standardization, a central recordation system or regulatory oversight, then it's going to be kind of a wild wild west for those individuals, and they're just going to pivot to a different type of scheme," Kennedy said.
Published with permission of The American Independent Foundation.