4 October 2021 by Employment Law

On a wing and a prayer: Considerations around applications for exemption from mandatory vaccination policies based on religious grounds

In terms of the directive issued by the Department of Labour, all mandatory workplace vaccination policies should allow employees to apply for an exemption from the policy on religious grounds.

We have written previously that employees bringing religious exemptions will most likely object to being vaccinated based on the incompatibility between their religious beliefs and vaccination policies. This might include both superstitious beliefs and those rooted in the interpretation of a religious text. Additionally, employees may raise an objection based on the content of the vaccines, which may or may not contain substances that are prohibited from consumption for religious reasons.

The absence of an exemption process may be fatal to the validity of the policy. Absence of an exemption process is the ground on which employees of the New York Department of Health are challenging a vaccine mandate in the ongoing case of Dr A v Hochul (1:21-CV-1009). The court granted an interim order in the matter and will be called upon to determine whether a vaccination policy that has no place for religious exemptions violates the First and Fourteenth Amendments, the Supremacy Clause, and the Equal Protection Clause of the US Constitution. This case will establish the importance of the presence of exemption clauses generally.

Employer and employee obligations

In the South African context, a failure to include an exemption procedure would result in the policy falling foul of the directive issued by the Department of Labour. Any South African mandatory vaccination policy is thus obliged to allow employees to approach the employer for an exemption.

Where a religious exemption is applied for, employers have an obligation to consider these exemptions carefully.

When making such applications, employees have an obligation to, at a minimum, establish that:

  • taking a vaccine interferes with their ability to practice their belief/ faith; and
  • the ability to practice, which has been interfered with, is a central tenet of their faith.

When these two criteria are met, an employer would assume the obligation to prove that nature of the employee’s position inherently requires them to be vaccinated and reasonable measures were taken to accommodate the employee's belief. Difficulties arise where an employer suspects that an exemption is applied for in bad faith, where an employer is unable to reasonably accommodate an employee, or where an employee rejects the offer of alternative arrangements made by the employer.

Where an employer dismisses an employee for operational or incapacity reasons on the basis of their unwillingness to be vaccinated, a disgruntled former employee might argue that such a decision discriminated against them on the grounds of their religion.

When approached with such discrimination cases, South African courts will ultimately undertake a proportionality exercise, weighing up the nature of the interference to the person's religion against the consequence for such refusal. Sachs J in Christian Education South Africa v Minister of Education described the task of assessing religious discrimination claims as striking a balance between two very different interests. On the one hand “[r]eligious conviction and practice [which] are generally based on faith. On the other, public or societal concerns which are generally assessed ‘according to their reasonableness’”.

In the United States, the Western District Court of Louisiana was recently approached in the case of Magliulo v Edward Via College of Osteopathic Med., (3:21-CV-2304) by several university students claiming their university's mandatory vaccination policy infringed on their right to religion. The students had applied for an exemption from the university's vaccination policy on the basis of their belief that the vaccine was derived from aborted foetal tissue. The university exempted them from the policy, but required that they undertake a range of additional safety measures.

The court decided that the university overreached in the implementation of additional safety measures and that the policy unduly infringed upon the students' constitutionally enshrined right to religion. The court failed to perform any analysis as to the legitimacy of the claim that the vaccine was derived from foetal tissue. Its assessment of the balancing of rights was equally threadbare. It must also be noted that US jurisprudence on the matter is not settled. In Klaasen et al v The Trustees of Indiana University (1:21-CV-238), the US District Court of Northern Indiana held that the University of Indiana's vaccination policy, which included a similar religious exemption provision to Louisiana's, "isn’t used to burden religion, but instead gives those of religious conviction the benefit of freely practicing their religious conviction to refuse the vaccine."

It's apparent that there are no easy, universal answers to disputes involving religious rights. Employers looking to mitigate legal risk in these circumstances should seriously consider any applications for exemptions brought on religious grounds and take care to ensure that the process is dignified and duly respects the rights of all parties.

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