Vaccine Resources

Important Information

Christian Legal Society has created this webpage solely to provide information to our membership and the general public in response to the many inquiries we have received requesting information about vaccine mandates. Like many religious freedom organizations, given the sheer number of requests, CLS is not taking vaccination mandate or other COVID-related cases. CLS is a nonpartisan organization with members who hold varying positions on the legitimacy of the vaccine mandates.

CLS desires to serve those with questions about the religious freedom implications of the vaccine mandates by providing a list of possible resources. CLS does this as a courtesy to our membership and to assist our Christian community in obtaining further legal guidance if they should want it. Please note that CLS does not take a position on the personal decision of whether to be vaccinated or not.

If you wish to speak to an attorney who lives near you, please check out the Christian Legal Society Attorney Referral Directory. Many attorneys listed in the directory probably do not practice in this area of the law and may not be taking clients.

Disclaimer

By listing possible resources, CLS is not endorsing any of the resources. Should you contact any of these resources and they give you advice or agree to represent you, CLS is not part of that contact or representation. This webpage is for information only and is not intended to provide legal information or legal advice. The list below is not intended to be an exhaustive list and does not create a client relationship or an endorsement of any of the organizations named.

Because the law is constantly changing, we encourage you to conduct your own research and verify the resources listed below by contacting them directly.

Legal Overview

Challenges to vaccine mandates are difficult because there are federal, state, and local laws at play, and the contexts vary widely depending on whether the person is a member of the military, a government worker, a health worker, a college student, a younger student, or many other variable factors. In addition, at the state and local levels, the religious freedom protections vary from state-to-state and locality-to-locality.

Federal law

  • Federal Vaccine Mandates
    • Federal employee vaccination mandate
      • Executive Order 14043 mandates vaccines for all federal workers, 86 Fed. Reg. 50989 (Sept. 14, 2021)
        • “Sec. 2. Mandatory Coronavirus Disease 2019 Vaccination for Federal Employees. Each agency shall implement, to the extent consistent with applicable law, a program to require COVID–19 vaccination for all of its Federal employees, with exceptions only as required by law.”
        • The Office of Personnel Management states that “[e]mployees who refuse to be vaccinated or provide proof of vaccination are subject to disciplinary measures, up to and including removal or termination from Federal service. The only exception is for individuals who receive a legally required exception pursuant to established agency processes.”
      • The Safer Federal Workforce Task Force issued an FAQ regarding implementation of the vaccination mandate.
      • Exceptions from the vaccination mandate are quite limited but may include a religious exception or a medical exception.
        • “In particular, an agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations.”
        • The government seems likely to be stingy with granting religious accommodations, but persons with religious objections may try to obtain one.
        • If one intends to submit a request for a religious exception, one should do so before November 8, because enforcement of the mandate may begin as early as November 9. The November 22 deadline is the deadline for having the federal workforce fully vaccinated, so the latest that one could get the last shot and be fully vaccinated by November 22 seems to be November 8, as indicated in a letter from the Office of Personnel Management.
      • The government has provided template forms for requesting either a religious or medical exception.
        • Federal Government’s Template for Requesting a Religious Exception to the COVID-19 Vaccination Requirement
        • Federal Government’s Template for Requesting a Medical Exception to the COVID-19 Vaccination Requirement
    • Federal Contractors and Subcontractors
      • On September 9, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (also at 86 Fed. Reg. 50985 (Sept. 14, 2021)), which directs executive departments and agencies to ensure that contracts and contract-like instruments covered by the order include a clause requiring the contractor—and their subcontractors at any tier—to, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Task Force. These workplace safety protocols will apply to all covered contractor employees, including employees in covered contractor workplaces who are not working on a Federal Government contract or contract-like instrument.
      • Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sept. 24, 2021)
        • “Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an  accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”
        • “A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance.”
        • Deadline for compliance is December 8, 2021.
      • FAQ for Federal Contractors from Safer Federal Workforce Task Force
    • Private employers that are not federal contractors or subcontractors and that have more than 100 employees
      • On September 9, 2021, the Administration announced that the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) would issue an emergency temporary standard (“ETS”) requiring private employers with more than 100 employees that are not federal contractors or subcontractors to require that their workers be vaccinated or undergo weekly COVID testing. Employers face fines of up to $14,000 per violation for non-compliance.
      • As of October 22, 2021, OSHA has not issued the ETS, so the mandate for private employers that are not federal contractors or subcontractors has not yet gone into effect, although some employers may have adopted their own vaccination mandates in anticipation of the federal government’s mandate.
    • Religious freedom protections that may or may not provide protection for persons challenging a vaccine mandate
      • Title VII, 42 U.S.C. §§ 2000e-2(a)(1)& (2), 2000e(j)
        • The Equal Employment Opportunity Commission administers Title VII, including the religious accommodation provision. The EEOC issued this past spring, with updates as recently as October 13, 2021, guidance entitled “Title VII and COVID-19 Vaccinations.”
        • The EEOC’s guidance on COVID-19 vaccinations begins with this overview of Title VII’s requirements:
          • “K.1. Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated against COVID-19?” (Updated 10/13/21)
          • “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.
          • “In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).”
          • “As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]). Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.”
          • “It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”
          • “K.2.  What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?” (5/28/21)
          • “An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.”
          • “Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.”
        • The EEOC’s guidance on COVID-19 Vaccinations specifically addresses religious accommodation under Title VII:
          • “K.12. Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance?” (Updated 5/28/21)
          • “Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests.”
          • “EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605.”
          • “Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6., above. In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.”
          • “Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.  Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.”
        • For information about Title VII and religious discrimination issues generally, see the EEOC Compliance Manual on Religious Discrimination
        • Bottom line: Employees with sincerely held religious beliefs regarding taking the vaccine have a legal right to ask for a religious accommodation under Title VII. In the past, in non-COVID cases, courts have ruled that employers can easily show “undue hardship” in order to escape having to give religious accommodations. (Because of statutory text, it is harder for employers to show they have shown “undue hardship” for cases involving disabilities, than in cases involving religion.)
        • Should an employee’s request for religious accommodation be denied by her employer, she must file a complaint with the EEOC within 180 days of the denial in order to preserve her right to go to court. The EEOC then determines whether to take the case itself, issue a right-to-sue order, or just stay out and allow the person to proceed as she wishes.
      • Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.
        • If an individual or institution shows a sincerely held religious belief that has been substantially burdened by a federal government law or regulation (such as a COVID vaccination mandate), the government must demonstrate a compelling interest that it cannot achieve by a less restrictive means than requiring the individual or institution to comply with the law or regulation.
        • Whether compelling COVID vaccinations is an interest that is compelling and cannot be achieved by a less restrictive means has not been decided and may be a close call for courts.
  • State and local vaccination mandates
    • Some states prohibit mandates, although none seem to currently have a COVID vaccination mandate.
    • The National Academy for State Health Policy has a website for tracking state mandates.

Potential Resources
CLS is unaware of any public interest law firm that is taking numerous individual cases. Obtaining private legal counsel may be necessary. Below is a listing of other groups that have online resources available.

Public Interest Law Firms

Law Firms

Mike Schutt

Director, CLS Law School Fellows

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Grants Coordinator

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Law Student Ministries Coordinator

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