Employer can make workers pay for tests

Employees rejecting vaccine on religious grounds aren’t completely off the hook

Q: I decided to require COVID-19 vaccinations for all employees. I know that the vaccine isn’t guaranteed to stop my workers from getting or spreading the virus, but my understanding is that it drastically reduces the possibility of infection. A couple of my workers just can’t take the shot, for medical reasons. They will have the option of getting a weekly COVID-19 test instead of the vaccine. Three other workers have asked whether they can get a “religious exemption” from getting the vaccine based on their “sincerely held religious belief” that the vaccine is made from aborted fetuses and therefore violates their belief in the sanctity of human life. I asked for time to look into it. I’m not inclined to let them off the hook; I think they made up their religious objection, or found it on social media. Do I have to give an exemption to religious fakers?

A: Unfortunately, when faced with a claim for a religious exemption, an employer is often forced to accept the claim at face value. The focus when examining a claim for a religious accommodation is on whether a claimed religious belief is “sincerely held,” and not on whether it is rational, or even consistent with the teachings of the church or denomination to which the person claiming the exemption belongs.

As the U.S. Supreme Court said in 1981, in this country “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit … protection.” Thomas v Review Board of Indiana Employment Security Div (1981).

So, even though the aborted fetus claim has been debunked repeatedly, and no major religion has come out against the COVID-19 vaccines, the question you have to

decide is whether your employees sincerely believe that use of the vaccine would violate a core religious belief. This is difficult to prove, although it is not impossible.

For example, a union was entitled to ask for more information from a long-term union member who suddenly claimed that he could no longer pay union dues because the union supported activities that were contrary to his religious beliefs. Since the union had not changed the kind of activities it supported, the man’s sincerity — after he had paid dues for 14 years without protest — could be questioned. The court in that case ruled that the union’s request for some kind of independent corroboration that the views were religious and sincerely held was appropriate.

The underlying basis of your employee’s farfetched “contains aborted fetuses” argument is the fact that fetal cell lines were used in vaccine research. But the use of fetal cell lines — generations of cloned cells that may have originally derived from a cell from a fetus aborted in the 1970s or 1980s — is common in medical research. Medications that used fetal cell lines during research and development include acetaminophen, albuterol, aspirin, ibuprofen, Tylenol, Pepto Bismol, Tums, Lipitor, Motrin, Preparation H, Claritin, Prilosec and Zoloft. According to James Lawler, an infectious disease expert at the University of Nebraska Medical Center, “Current fetal cell lines are thousands of generations removed from the original fetal tissue. They do not contain any tissue from a fetus.”

If your employees object to the COVID-19 vaccination because of its use of a fetal cell lines, their sincerity could be called into question if they use any of the many other medications that used fetal cell lines in R&D.

That said, it is probably not worth your while to challenge the sincerity of your employees’ beliefs. Litigation often follows any challenge and — even if you win — costs thousands of dollars.

But allowing your employees a religious exemption to the vaccine requirement does not mean they are off the hook. To help ensure a safe environment, you are within your rights as an employer to require weekly testing at the employee’s expense, and ask that any unvaccinated employees wear masks and follow any other COVID protocols required in your place of business.

While many of us are tired of hearing about COVID, and tired of its ongoing impact on our lives, the fact is that more than 800,000 Americans have died from the virus. A recent report stated that 87 percent of COVID ICU patients in Michigan are unvaccinated; deaths among the unvaccinated are 13 times higher than those among the vaccinated population.

If you want to challenge your employees’ claim for an exemption, you should consult an attorney.