This month, California became the first state to require Covid-19 vaccines for all schoolchildren but the provision came with a loophole: students will be granted religious exemptions.
California, which currently has the lowest coronavirus case rate in the US, has been issuing a series of sweeping mandates, requiring that healthcare workers, state employees, care workers and school staff get the vaccine. But in each case, Californians are able to ask for personal belief exemptions – and they are doing so in droves.
Epidemiologists are concerned that the loophole will embolden the vaccine-hesitant to evade requirements and undermine the state’s progress against the pandemic. And lawyers and legal experts are bracing for a deluge of complaints over the blurry lines that define “sincerely held” objections to the vaccine.
Many parents and even some teachers have raised opposition to the mandates, with walkouts and protests already taking place across the state. In rural northern California and conservative patches of the south, parents picketed against the public health measures on Monday, insisting that they wouldn’t “co-parent with the government”. Last week, teachers at a school district in Los Angeles who were denied religious exemptions demonstrated outside the headquarters.
Meanwhile, the Los Angeles fire department fielded more than 450 requests for exemptions, while a quarter of the Beverly Hills fire department requested exemptions. In San Francisco, some 800 city workers – including police officers and firefighters – have asked for exemptions, though the city has yet to approve a single request.
As state and city officials increasingly enforce strict mandates, a cottage industry of anti-vaccine and religious groups has cropped up to help people dodge requirements. In Rocklin, California – just north-east of the state capital, Sacramento – a megachurch pastor has been offering religious exemption letters to all who want them. Pastor Greg Fairrington of Destiny Christian church, who has organized protests at the state capitol against the state’s vaccine requirements for school children, healthcare workers and first responders, has held that he is not anti-vaccine, but “the vaccine poses a morally compromising situation for many people of faith”. The Christian legal advocacy group Liberty Counsel offers letter templates to claim a religious exemption, as well.
“Even when you have a few individuals that are refusing or hesitating to take the vaccine, in large cities like San Francisco that can have huge public health implications,” said Lorena Garcia, an associate professor of epidemiology at the UC Davis School of Medicine. A bus driver, police officer or teacher with a vaccine exemption not only risks catching the coronavirus but also passing it on to one of the hundreds of other people they interact with – especially immunocompromised people who are at greater risk of catching the virus even if they are vaccinated.
Because laws protecting religious or philosophical objections offer broad leeway for those seeking waivers, amid rampant misinformation about the safety of the Covid-19 vaccine, Garcia said she worried about how many people will exploit the waivers. Ultimately, she said, it may not matter that not only public health officials but also prominent religious leaders have been encouraging people to get vaccinated. Indeed, Pope Francis, leaders of the Church of Jesus Christ of Latter-day Saints, Orthodox Jewish rabbis and Islamic leaders in the Fiqh Council of North America have all been touting the vaccine.
Leaders of fringe religious groups have been helping fuel and spread anti-vaccine fervor on social media – and amplifying the tried and tested strategy of invoking one’s personal beliefs and first amendment freedom of religion and expression to sidestep public health policies.
Federal and state laws offer protections for workers who want to decline a vaccine due to their religious or philosophical beliefs, which can be broadly defined. Beliefs based on an organized religion’s teachings are protected, but so are other “sincerely held” beliefs or observances that are important to an individual, said Dorit Reiss, a law professor at UC Hastings. The most an employer can do to contest waiver requests is to probe the consistency of employees’ beliefs – if they oppose the vaccine because they oppose the use of fetal cells in research, do they also refuse to take Tylenol, Tums and other medications developed using fetal cells? But the tactic is “rife with legal pitfalls”, Reiss said. Ultimately, a sincerely held belief may not have to be rational or consistent in order to be protected by the law.
These laws are strong because they “were created to protect people from real discrimination, in situations where, for example, a Jewish employee might be forced to work on a Saturday, or a Sikh employee is asked to remove his turban”, said Reiss. But they weren’t designed for situations in which one employee’s belief system puts others’ lives at risk, she said.
Workplaces and agencies that are unwilling to grant exemptions are required to provide “reasonable accommodations” for employees who do not want the vaccine – which could include unpaid leave, reassignment or allowances to work from home, Reiss explained. But employees can and do challenge such moves with lawsuits.
And while anti-vaccine websites and forums have for years openly admitted to lying about their religion to obtain exemptions, as Reiss found in a 2014 survey of such sites, “the pandemic has increased the scale” at which the tactic is employed. Meanwhile, employees with disabilities – including those who are immunocompromised – are limited in how much they can do to push back against co-workers claiming exemptions.
Hanna Sweiss, an associate at the law firm Fisher Phillips, said in recent weeks she and her colleagues have been flooded with questions from employers in healthcare, hospitality and other industries about how to comply with vaccine requirements – including upcoming federal mandates for workplaces – while fielding requests for waivers. “It’s been coming up a lot lately, and we’re getting questions about religious accommodations requests when it comes to vaccines, but also Covid testing,” she said.
As such requests flood state agencies and school administrations, public health experts and parents have been asking lawmakers to tighten exemption rules, as they did in 2015 when they passed a law eliminating the personal belief exemption for childhood immunizations. But that law doesn’t apply to immunization requirements issued without a vote from the legislature. Richard Pan, a pediatrician and state legislator who authored the 2015 bill, has said he will consider addressing the loophole if cases surge once again.