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Last week, we introduced a new topic on disability discrimination. In the three parts of the series, we hammered on many things including a dissection of a claim and case on disability discrimination. While employees in many businesses and companies would find this information useful, our primary goal entailed offering aid to a large group of nurses who needed help on how to prepare for the ongoing COVID-19 vaccine mandates, organize their lawsuits and, eventually, defend themselves against their employer. In all the three parts, our focus revolved around medical exemptions.

However, a section of these nurses sought help because they needed religious exemptions. By way of backdrop, this is the reason why we decided to prepare a video titled “Understanding The Religious Exemption In NYC” and, as the title suggests, we endeavor to educate you about what the law says about religious exemptions in New York City. Please, hit the link provided at the end of this blog to access our video.

Background to Religious Exemption

For starters, what does it mean by “Religious Exemption?” In simple terms, this means that you are exempted from participating in a certain activity because you have contrary views based on your religious beliefs, moral, and values. In light of the COVID-19 vaccine mandates, such an exemption implies that you are exempted from taking the jab because doing so is contrary to your religious beliefs. The first historical record of religious exemption dates back to 1798 when a bunch of clergymen and physicians ganged up to oppose vaccination.

However, as you’d expect, the mentality regarding the science behind vaccines then was that men were playing God with people and that sickness was punishment for one’s sinful acts. For instance, because of the influence morality and culture had on society, contracting a sexually transmitted infection back then was considered a punishment from God. Over time, while this notion has changed with growth in scientific knowledge, people now understand the basics behind how vaccines are created. For example, the fact that some vaccines contain fetal tissue and embryonic stem cells conflicts with the beliefs and values of various religious sects.

Ideally, the concept of religious exemption derives from the idea of religious liberty. In America, people believe that they have the right to choose their own religions and be free from any religious oppression. However, at the same time, if religion was perceived to be a fundamental human value that should not be stifled in this country, then religious exemptions can be granted when it comes to certain social and communal practices such as being vaccinated.

Which States Uphold Religious Exemptions the U.S.?

Generally speaking, all states in the United States except Mississippi, California, West Virginia, Maine, and New York, have basically allowed parents to take religious exemptions for their children not to take part in activities such as school vaccination mandates. For these five states where parents are not allowed to take such exemptions, it’s a matter of debate because, in most cases, courts have to be involved. However, a lot of money is needed to take a case to the Supreme Court.

What about New York?

The New York state has been generally hostile to claims regarding the free exercise of religion. To a certain extent, the Supreme Court has handled these claims a bit differently and has done better in upholding and supporting them. A good example is the archdiocese vs. Cuomo case in which the Supreme Court upheld some religious principles. In that spirit, the principle of religious exemptions is alive and kicking in New York. Therefore, you should strive for it if you have a strong conviction that some issues, such as the vaccine mandates, conflict with your religious beliefs and values.

What is a Religion Right?

From a legal perspective, the test as to whether or not something is classified as religion is known as the Fallon Test, deriving from the case Fallon v. Mercy Catholic Medical Center. The test comprises of three elements that form the basis upon which a set of beliefs is considered a religion or not.

  • Belief in a deity – In verbatim text from the courts, religion addresses the fundamental ultimate questions of what to do with deep and imponderable matters. For instance, there’s a general view that you can’t question some things because, as a human, you can’t reach the level of God in such matters.
  • Belief system – based on this element, religion should be comprehensive in nature and must be a belief system as opposed to just an isolated teaching.
  • Presence of Formal & External Signs – a religion often can be recognized by the presence of certain formal and external signs.

If your beliefs meets this criteria, then yours is considered a legitimate religion and you can, therefore, seek the religious exemption. The EEOC (Equal Employment Opportunity Commission) has always treated religious exemption similar to a reasonable accommodation. This means that while you apply for the religious exemption, they have the discretion to provide you with a reasonable accommodation. If they can’t, then the reason is attributable to an undue burden to provide you with such an accommodation that’s causing substantial hardship on an organization or particular entity. On their part, the organization or company is supposed to assess the risk the undue hardship poses to other employees at the time, the availability of effective alternative treatment that you can be provided with, whether they can place you somewhere else where you’re not exposed to the risk but without any effect on your workload, and the number of employee requesting the exemption or accommodation.

Why should you seek the Religious Exemption?

Simply put, if certain actions contradict and conflict with your core fundamental religious values and beliefs, then you should seek the religious exemption. For instance, if you’re ‘pro-life’ and you get to know that this or that vaccine contains fetal tissue and embryonic stem cells, then you ought to seek for the religious exemption so as not to get the jab. As mentioned, America appreciates religious liberties and, thus, you should give it a shot.

How do you apply for the Religious Exemption?

  • For starters, you should keep in mind that the religious exemption is a concept that derives from the ideology of religious liberties. As such, there’s no standardized rule or form of law covering this concept in all states, even when it comes to the Supreme Court. All matters of religious exemption are dealt with on a case-by-case, state-by-state basis. In general terms, if you’re seeking for the religious exemption, then you’re required to address a number of issues.
  • In your response, you should provide a precise and detailed description of the nature of your religious beliefs, your practice, and requirements of the particular accommodation you’re looking for. The idea is to stand firm and bold for your deeply held religious beliefs and convictions. Well, why shouldn’t you do it if the Pastafarians and their Church of the Flying Spaghetti Monster did it in the past!?
  • You should also possess some form of documentation, preferably from some authoritative source. For Christians, the Bible can be your authoritative source.
  • You also need provide detailed and descriptive reasons for which you seek the religious accommodation or exemption. For instance, you need to explain that receiving a vaccine created out of embryonic stem cells and fetal tissues contradicts and conflicts with your religious beliefs regarding the sanctity of life.
  • Next, you should also discuss the particular job functions that you can’t do because they conflict with your religious beliefs. At this point, you should also indicate the reasonable combination of exemptions or accommodations that you desire and how you could fix the issue.
  • Further, you also need to specify how long you need the religious exemption or accommodation. You should clarify whether it is temporal or permanent.
  • What does it Look Like in the Workplace?

If your employer bends to the vaccine mandates and requires everyone to be vaccinated, then you need to make your stand known if you don’t want to receive the vaccine. Let them know that you need a religious exemption or accommodation and because of what reasons. Make sure that your response to the employer features all the six elements discussed above. In most cases, the employer will respond to you, most likely via email, and provide you with a form to fill out and provide more details regarding your request. Unfortunately, things might get tricky if your employer refuses to provide you with the exemption and decides to give you a hard time. What do you do in such a case?

In line with the permissible religious liberties in this country, you should stand your ground, explain that you’re opposed to their decision, and let them know that you’re informed that there’s nothing in the law that says you’re not entitled to the religious exemption or accommodation you’re seeking. Additionally, it’s clear that there’s no prohibition with reference to the Department of Health. Remember that on August 18, 2021, before being disgraced and sent home packing, the former governor Andrew Cuomo, otherwise known as the Granny Killer here at Miletti Law®, drafted and signed a consent order that incorporated a broad religious exemption. Then, a week later, the Commissioner of the Department of Health issued guidance, which recited almost everything in the original order, excluding the religion part. As a result, people naturally interpreted that religion was excluded, but this is not the case. It’s only that it was not mentioned. Technically speaking, the law serves as gap fillers and that is why, all the fines that followed the COVID pandemic are being overturned because theirs is no rule behind it. For this reason, the law adds gap fillers when such things happen because such gaps cannot remain void.

Thus, remember to include the fact that you are “able,” “ready,” and “willing” to work as you have always done for a given number of years and it’s wrong, unconstitutional, and improper that they are forcing you to choose between your religious beliefs and work. Essentially, with all this information on your fingertips, you can write a decent legitimate response email to make you case. As usual, we always have your back with a bunch of templates that act as a guide on what to say and what to include in your response. Therefore, don’t hesitate to reach out to us for the same and guidance on how to go about it.

As a PROTIP – get back to your work and carry on with your duties as usual. If you feel pissed off and neglect your work, then you are providing your employer with reasons to terminate you on the allegations that you abandoned your job or you voluntarily resigned. Finally, on the day of separation, go to work and carry on as a clear indication that you’re not quitting your job. If they tell you that you need to leave, ask them why—tell them, “so you are firing me for this?” Make sure you tell them that you love your job—you have loved your job for [___] years, you have always worked and performed well. However, for this instance, which is completely outside of your scope of employment (i.e. ultimatums to take mandatory vaccine or be terminated was certainly not within the scope of your training or experience). Make them understand that they are asking you to make a choice [either go against your health, your conscious & moral judgment, and your closely held religious conviction] and that they are essentially terminating you. Do not yell, do not scream, and don’t cause mayhem because you’ll be giving them a reason to say you were engaging in misconduct. Tell them that you’re ‘able,’ ‘ready,’ and ‘willing,’ to work, but if they are terminating you, then they should call management and have security escort you out.

NOTE: This guidance in the video from which this blog was adapted and, ultimately, the blog itself, have not been designed to PROTECT your job. If the employer wants to terminate you, they will do it anyway and not give a shit. We see that many are afraid to be terminated—but to have a chance at having a fight, you MUST go through the temporary pain of unemployment. We will fight it out with them, we will push back, it is fine– but at the end of the day, we can’t keep trying to avoid the pain… this is why we are where we are today… we were looking to avoid pain this entire time and never wanted to fight. Our backs are no longer against the walls.

We invite you to review the video at https://www.youtube.com/watch?v=RefC0ObMZ_w

As usual, stay tuned for the next installment and always be #UnusuallyMotivated. In the interim, please reach out to us with questions and/or comments at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.