Religious Exemptions for Vaccines under Title 7 and Private Employers in the Health Care Field

It’s heartbreaking what’s currently happening to health care workers across the country. I’ve talked to dozens here in West Virginia who are currently facing losing their careers due to their health care employer – usually hospitals – mandating the current vaccines. Ironically, one can’t just choose to refrain from taking these vaccines because they’ve undertaken a common sense rational risk vs. reward analysis based on their own circumstances and health care situation, but rather only for religious reasons, which may, nor may not have any basis in rationality. But as with much of civil rights law, the only realistic way of stopping government tyranny is to somehow connect their actions to religious restrictions, because doing so triggers statutory and constitutional protections.

Almost all of the religious exemption applications I’ve seen thus-far have been denied by the large healthcare employers. Outrageously, what I’ve mostly seen is that these HR departments have been essentially arguing theology with these employees. They no doubt assume that the employees are lying, or being un-sincere about their beliefs. They’ve been arguing to the employees that they actually DON’T have a religious exception. They cite the fact that the pope is encouraging people to be vaccinate, etc.

Fortunately, however, the law generally provides that employees aren’t required to follow any particular religion or theology. The requirements are subjective to the employee. The only requirement is that the beliefs, which could just be strongly held moral beliefs, must be sincerely held by the employee. Thus, it doesn’t matter what the Pope said, or even what the pastor of an employee’s church said. What matters is subjective sincerity.

I’ve posted about the New York lawsuit which has currently obtained a temporary restraining order protecting New York health care employees from being fired pursuant to the NY state mandate currently in place. Whenever the ultimate ruling comes in that case, employees will have some legal guidance on what their legal rights may be in the current situation. Until that happens, it makes sense to pay attention to the claims being made by the physicians and other health care workers who are plaintiffs in the case.

The religious exemptions in the NY case surround the fact that the vaccines at issue either utilize, or did utilize in their development stages, fetal cell lines derived from abortions. Here are the details on the three separate vaccines:

  • Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).
  • Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.
  • Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Based on those indisputable facts, these are the grounds upon which the physicians in the New York lawsuit filed by the Thomas More Society base their religious exemptions. I highly suggest that health care workers who are pursuing religious exemptions utilize these points in countering the theological exemptions currently being presented by tyrannical health care employers:

  • They oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent, and thus they also oppose the use of abortion-derived fetal cell lines for medical purposes and abortion- derived fetal stem cell research.
  • It would be a violation of their deeply held religious beliefs and moral consciences to take any of the available COVID-19 vaccines given their use of abortion-derived fetal cell lines in testing, development, or production.
  • By receiving one of the COVID vaccines currently available, all of which are abortion-connected, they believe they would be cooperating with the evil of abortion in a manner that violates their consciences and that they would sin gravely if they acted against their consciences by taking any of these vaccines.
  • They agree with the teaching of spiritual leaders, including certain Catholic bishops, who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise, and who defend the right to a religious exemption from vaccination with such vaccines.
  • They do not accept the opinion—expressed by certain other Catholic bishops, the Pope included—that there is a therapeutically proportional reason to resort to abortion-connected vaccines which can justify “remote” cooperation in abortion. They reject as a matter of religious conviction any medical cooperation in abortion, no matter how “remote.”
  • They believe in the primacy of conscience in this matter. While one may personally conclude that recourse to abortion-connected vaccines can be justified in his or her case, vaccination is not morally obligatory and must be voluntary, and those who in conscience refuse vaccination need only take other protective measures to avoid spreading the virus.
  • Although they are not “anti-vaxxers” who oppose all vaccines, they believe as a matter of religious conviction that the ensouled human person, made in the image and likeness of God, is inviolable as a temple of the Holy Ghost and that civil authorities have no right to force anyone to be medicated or vaccinated against his or her will, whether or not the medication or vaccine is abortion-connected.
  • A risk-benefit analysis factors into each person’s formulation of a conscientious religious position on the morality of vaccinations. Plaintiffs are all aware of the vaccines’ side effects, which can be quite serious, their fading efficacy, requiring “booster shots,” their evident inability to prevent transmission or infection, and the fact that natural immunity is likely more protective than injections with the available COVID-19 vaccines. These medical facts inform Plaintiffs’ religious conviction against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs. Given that the Vaccine Mandate requires that employers insure that employees are “continuously” “fully vaccinated”— as many times as the government advises—Plaintiffs now reasonably fear that “booster shots” of the same vaccines they consider immoral will soon be demanded by the government as a condition of employment and even normal life in society, as is already the case with the original vaccines.

You can review these arguments in more detail and access their exhibits in my original post, which included their complaint in its entirety. I’ve been encouraging people to use as much specificity as possible in their applications for a religious exemption.

But also remember, that even if the employer accepts your religious exemption – which it legally must so long as its sincerely-held, that doesn’t automatically exempt the employee from the vaccine, while also ensuring they can keep their job. That only entitles the employee to an accommodation, if an accommodation can be made by the employer. The employer isn’t required to provide an accommodation if they would incur more than a de minimis expense in doing so. What does this mean? Well, that could mean wearing masks, getting tested frequently, working remotely, plexiglass, etc., etc. These sorts of accommodations may, or may not be possible for any particular employee.

So it’s not a perfect option, even if an exemption is granted. But right now it’s the only option available to a ton of employees who are in jeopardy – many of whom were forced to work through the pandemic in direct contact with covid patients, at times when there were no vaccines invented yet. But now that they’ve survived that, they’re expendable. Because, politics and virtue-signaling.

Federal Judge in NY Blocks State Mandate

A federal judge today temporarily blocked New York state from enforcing a vaccine mandate on health care workers who seek or obtain a religious exemption. Here’s the Complaint, filed by the Thomas More Society on behalf of numerous physicians and other health care professionals who are acting under pseudonyms. The Court issued a Temporary Restraining Order pending the response of the defendants and a hearing on the matter. The basis of the Complaint is failure to provide a religious exception. There are tons of exhibits attached to the Complaint detailing the basis for the religious exception under Christianity.

Employer Mandate Options? Live Webinar with Attorneys Chris Wiest and Andy Fox

What are the current best options in dealing with the flood of employer mandates? Lawsuit? Quit? Exemptions? Join me for a discussion / webinar with Kentucky Attorney Chris Wiest and Tennessee Attorney Andy Fox. Live at 5:30 p.m. ET

Here’s a sample religious exemption letter courtesy of Chris Wiest, as discussed in the video. It has some Kentucky-specific language in it, but you get the idea:

Response Brief Submitted in the Enlivant Vaccine Mandate Case

Today we filed our response brief to Enlivant’s motion to dismiss in our wrongful termination lawsuit in McCutcheon v. Enlivant, currently pending in the Southern District of West Virginia. The lawsuit challenges the right of private employers in West Virginia to discharge employees for not taking the EUA vaccine. Here’s the filing.

Seeking to temper the otherwise harsh results that would obtain where a discharge from employment was impelled by the employer’s desire to contravene public policy, an exception to the common law doctrine of at-will employment was established. See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See also Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468 (1955) (recognizing that at- will employees serve at will and pleasure of their employers and may be discharged at any time, with or without cause). That exception, created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), provides: 

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015). The Court has identified the areas from which public policy may be gleaned:

‘The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.’ 

“To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607. “Substantial public policy” has been defined by the Supreme Court as “not just recognizable as such but be so widely regarded as to be evident to employers and employees alike.” Id. at 745, 559 S.E.2d at 718. The Court recognized in Syllabus Point 3 of Birthisel that ““[i]nherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” 188 W.Va. at 372, 424 S.E.2d at 607. The Court has looked to whether regulations or licensing statutes contained specific provisions that addressed the allegedly improper conduct by the employer. Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 170 (W. Va. 2015). 

Here is their memorandum arguing for dismissal:

Discussion from last night:

Lawsuit Filed Against Chicago Company for Mandating the Vaccination of West Virginia Employees

Today we filed suit against Enlivant, a Chicago company who owns and operates an assisted living facility in Greenbrier County, West Virginia operating as Seasons Place Assisted Living. On June 1, 2021 they terminated my client, Stephanie McCutcheon, for refusing to take an unapproved non-mandatory vaccine for COVID-19.

This is the letter Stephanie received from the Human Resources Director in Chicago after complaining about the company’s verbal vaccine mandate. As you can see, knowing it was a violation of federal law to mandate the vaccine, they attempted to frame her termination as a resignation.

Given that it appears to be a form letter, they have apparently done this to other employees. They have assisted living facilities in numerous states.

Our legal theory is a state-law based claim of retaliatory discharge. Basically, as everyone knows, West Virginia is an at-will employment state. However, there was an exception created in Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), which provides that:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.

The State Supreme Court has defined the areas from which “public policy” may derive:

“The sources determinative of public policy are, among others, our federal and state constitutions, our public statutes, our judicial decisions, the applicable principles of the common law, the acknowledged prevailing concepts of the federal and state governments relating to and affecting the safety, health, morals and general welfare of the people for whom government—with us—is factually established.”

See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015)

So federal laws and regulations may form the basis of “public policy.” Now whether that public policy is “substantial” depends on whether it’s “widely regarded as to be evident to employers.” No doubt that requirement is met in this case. A quick google search will reveal an enormous amount of discussion and advice regarding the legality of employers mandating the vaccine. But we shall see….

Here’s the lawsuit, in full, which lays out the facts and law pertaining to the COVID-19 vaccines at the current time:

Here are the exhibits, including the EUA letter to Pfizer:

We are asking for an expedited hearing for a preliminary injunction enjoining Enlivant from terminating employees for choosing not to take a non-mandatory, unapproved vaccine, and directing that my client be re-hired, as well as a declaration that a private employer may not terminate or take adverse action against employees for choosing not to take the COVID vaccine. We are also seeking money damages, punitive damages and attorney fees.

Media Reports:

https://wvrecord.com/stories/602196867-employee-sues-assisted-living-facility-after-she-was-fired-for-refusing-to-take-covid-vaccine