President Biden announced in September that OSHA would issue a temporary emergency standard requiring companies with 100 or more employees to require weekly COVID vaccination or testing. (Adobe stock photo)
Regarding religious exemption requests for COVID-19 vaccine warrants, labor lawyer Amy Adolay was unable to count the number of calls she received from unresolved clients.
“There have been a lot of phone calls asking the scope of these exemptions and when an employer should provide one and what is considered a sincere religious belief,” said Adolay, who chairs the Labor Practice and the Krieg DeVault job.
Adolay is one of many advocates for Hoosier’s labor grappling with the new territory that comes with the COVID-19 vaccine warrants. Lawyers representing employers and employees have seen increases and lulls in inbound calls concerned about their implications.
Indianapolis attorney Benjamin Ellis of HKM Employment Attorneys said he also saw a spike in employee calls this fall, with people seeking religious exemptions from their employers’ vaccination mandates. However, in recent times the calls have slowed down.
“At its peak, it was daily or several times a day. At this point, it wouldn’t be surprising that a week goes by without one, ”Ellis said of the inquiries.
The plaintiffs’ labor attorney said he had spoken with other attorneys for the plaintiffs who say they have no appetite for religious exemption cases. Instead, they say they’d rather err on the side of workplace safety than on the side of individual exemptions.
“One of the issues is that people who apply for a warrant exemption certainly usually have a medical or religious issue involved. But that issue can put them in conflict with other potential clients that we have who can. be vulnerable to COVID-19 for one reason or another, ”Ellis said.
“It puts a lot of litigants on the plaintiff side of the deadlock on: ‘Are we going to put our other clients who may be vulnerable to COVID-19 at a disadvantage if we start to help justify these claims that oppose compliance with the vaccine mandate? “”
When representing employment litigants, lawyers will inevitably have conflicting interests between their clients, said Indianapolis labor lawyer, Stephanie Hahn.
“It happens day in and day out,” said Hahn, who has represented employees for 26 years. “On the one hand, I understand. But I don’t understand because, as lawyers for the plaintiffs, we have competing interests among our clients all the time.
Phones in Hahn’s office ring off the hook with calls from employees seeking religious accommodations. However, she is careful not to speak widely when it comes to dealing with requests for religious exemption because each case is different.
“To be eligible for a religious exemption, an employee must have a sincere religious belief,” she said. “The reality is that a lot of the calls we get are not from people who have what might be called genuine religious belief. Many suddenly acquired religion.
Tami Earnhart, a labor and employment group partner at Ice Miller, said that while she has not heard the plaintiffs’ lawyers feel they are wrong on the workplace safety side, she finds the interesting reasoning from a more practical point of view.
The same goes for Adolay, who, like Earnhart, represents employers. She has noticed that most employers are currently seeing religious exemption requests from their staff and are working on the process of setting company policies in place, reviewing exemption requests and trying to determine whether the requests are genuinely based on religion or based on political or personal beliefs.
“I can’t think of any client who has had an accusation (Commission for Equal Employment Opportunities) or legal action brought against them at this point for not providing a religious exemption,” said she declared. “Maybe the explanation is that the lawyers on the employee side don’t take these cases, but even if they don’t, the employee could still decide to take it on himself. But perhaps they become less likely to do so if they cannot find a legal advisor who will handle the matter for them.
Hahn said she didn’t expect to see decisions on COVID-19 religious exemption lawsuits from the 7th Circuit Court of Appeals for a year or two. As to whether these lawsuits will be successful, she said it depends on each case.
“The real issue is whether the accommodation requested is more than a light or de minimis burden on the employer,” she said. “If so, the employer is likely to prevail if the employee takes legal action.”
“Given the seriousness of the COVID-19 risk and the general deference courts give to employers when making decisions about their workplace, I think it would be very difficult, and most cases exempt will have a tough battle to win, ”said Ellis. “It’s a case-by-case decision. I don’t think the courts will be hostile to any particular category of complainant, but I do anticipate that most people who might bring a complaint will not prevail.
Get the green light
In September, President Joe Biden announced that the Department of Labor’s Occupational Safety and Health Administration would issue an emergency temporary standard requiring companies with 100 or more employees to require their employees to be fully immunized against COVID-19 by January 4 or get tested. for the virus every week under government rules.
But federal courts have issued various decisions related to the COVID-19 vaccine warrants, putting employers and employees in limbo.
On December 17, a three-judge panel of the 6th Circuit Court of Appeal upheld OSHA’s mandate, overturning a decision of the 5th Circuit Court of Appeal. The United States Supreme Court will hear argument on the federal mandate on January 7.
In the meantime, OSHA has announced that it will not issue citations until Jan.10 for its vaccination mandate or Feb.9 for its testing requirement to give employers time to adjust.
In Indiana, employers have the power to decide whether or not to grant religious exemptions to their staff under Title VII of the Civil Rights Act.
Although she has not seen any lawsuits filed by employees over denied religious exemption requests, Adolay said she expects to see them soon.
“OSHA ETS is back in effect based on the 6th Circuit ruling, so I think we’re going to start to see an increase in religious exemption requests and maybe some of them being denied,” we’ll start to see EEOC charges and lawsuits filed, “she said.
But there is a possibility that OSHA ETS will disappear again depending on what happens in the Supreme Court, she pointed out. There is also still uncertainty about what might happen to additional federal mandates such as the Centers for Medicare & Medicaid Services and federal contractor rules.
At home, Indiana lawmakers have already started to inject gas into a bill introduced in the 2022 session of the Indiana General Assembly that would hamper an employer’s ability to consider an application for religious exemption before deciding whether to grant it or refuse it. House Bill 1001 would allow any worker requesting a religious exemption from a vaccine warrant to have their request granted by their employer “without further investigation.”
The recent outrage against the bill has sparked hours of public testimony from Hoosiers and members of the state’s business and medical community, drawing attention to concerns about how to balance the religious freedoms of workers and the right of employers to ensure safe workplaces.
“The warrants violate individuals’ well-established rights to consent to their medical treatment that this bill should ban them,” Terre Haute lawyer James Bopp Jr. said during his testimony on HB 1001. “J ‘urges the Indiana General Assembly to ban COVID. -19 terms, period.
When asked if it was possible for state laws to thwart federal vaccine mandates, Earnhart said federal vaccine regulations would prevail over state laws.
“These are federal laws, they just aren’t federal law,” she said. “So as long as the agency has the authority to have published the regulations and done so through the proper processes, then federal regulations will prevail over state law.” “
Adolay agreed that when it comes to the possibility of federal mandates conflicting with state rules, the general norm is that federal law will prevail.
“Sometimes that can put an employer in a very difficult situation where they cannot comply with both,” she said.
The combined factors of state law and federal ordinances have already had an impact on religious exemption seekers and labor attorneys, observed Earnhart. This added a layer of complexity that has required labor law practitioners to be extremely vigilant in advising clients on issues related to vaccination mandates and the potential exemptions employers may have to provide under the overlay of existing laws. .
“I think we will continue to see, unfortunately, as these vaccines mandates if they end up being rolled out and approved like the OSHA HTA is, we will see a period of more confusion or misunderstanding,” he said. she declared. “But I hope everything will work out. “•