Thursday, November 11, 2021

Coronavirus Update 11-11-2021: Religious groups tell 5th Circuit that the OSHA vaccine mandate is a “sin against God"

In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)

Here's what these zealots wrote in their brief.

These organizations believe the Bible is the inspired, infallible, and authoritative Word of God. The Bible teaches that the right of conscience is sacred and must remain inviolate. Any mandate that forces AFA or Daystar to compel their employees to be vaccinated against their will is one that would require them to violate their employees' sacred rights of belief and conscience. That is something neither organization can do without sinning against God.

AFA and Daystar must obey God's Word. They have no other choice. … AFA and Daystar have religious objections to forcing their employees to test their conscience about receiving the vaccine. AFA and Daystar believe that if they implement the required vaccine mandate, they will wound the consciences of their employees and potentially cause them to sin. In addition, AFA and Daystar believe that if they even put their employees to the test, the very act of implementing the vaccine mandate is a sin against God's Holy Word.

The reality is that the OSHA ETS does not mandate that employees receive the Covid-19 vaccine. It mandates that employees, by no later Jan. 4, 2022, either be fully vaccinated or provide their employer a negative Covid test on a weekly basis. That testing option also provides the required reasonable accommodation from a vaccine mandate for employees who have a sincerely held religious belief against the vaccination (as well as employees with a physical or mental impairment for which a health care provider recommends they not be vaccinated).

OSHA makes it clear that weekly testing + face coverings are the appropriate reasonable accommodation for unvaccinated employees: "The ETS requires weekly COVID-19 testing of all un-vaccinated employees, including those entitled to a reasonable accommodation from vaccination requirements. However, if testing for COVID-19 conflicts with a worker's sincerely held religious belief, practice or observance, the worker may be entitled to a [further] reasonable accommodation."

There is simply no argument that the OSHA rule violates employees' religious rights when the reasonable accommodation is baked right into the rule itself. 

As to AFA's and Daystar's argument that these accommodations don't apply to them because they are exempt through Title VII's ministerial exemption, that might be true, but it does not mean that they are forbidden from accommodating employees with weekly testing. Indeed, it would be First Amendment Violation if the OSHA standard did not allow for this accommodation for religious employers not covered by Title VII.

I've thought more about religious accommodations in the past few months than I had in the first 25 years of my career, and quite frankly I wish it had stayed that way.