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If employers had only known the legal changes and the political backlash to come when they enacted Covid vaccine mandates in 2020 and 2021, they may have reconsidered. 

Faced at that time with a pandemic rendering many employees unable to work and threatening to affect many more, and based on information from government agencies whose guidance had previously been accepted as a matter of course, many employers enacted mandatory vaccine policies.  Few anticipated the amount of litigation that would result from their decisions regarding exemption requests, particularly religious exemption requests under Title VII of the Civil Rights Act of 1964. 

As of 2021 when employers were making their decisions on employees’ objections to the Covid vaccine, the 40-year old legal standard in effect allowed employers to reject a religious exemption request if it resulted in more than a de minimis cost.  In June 2023, however, the Supreme Court decided Groff v. DeJoy, which established a new standard for evaluating requests for religious exemptions related to employment. 

Groff holds that religious exemption requests must be accommodated unless the employer can demonstrate that the burden of doing so “would result in substantial increased costs in relation to the conduct of its particular business.”  This new standard was much more difficult for large, well-capitalized employers to satisfy.  And in an even bigger surprise, the Supreme Court ruled that the new standard should be applied retroactively. 

The effect of Groff is that denials of exemption requests that had previously seemed reasonable under a de minimis cost standard were now subject to reevaluation under the more stringent standard.  And, in the background, these reevaluations were occurring at a time when the Supreme Court had been elevating religious freedom in a variety of contexts and vaccines had become a hot button political issue. 

Now there is a proliferation of Title VII litigation from employees who lost their jobs or were forced into unpaid leave due to their refusal to be vaccinated against Covid.  The Groff standard prevents employers from obtaining summary judgments.  And juries are rendering significant awards in cases that make it to trial. 

The Groff standard is not the only interesting issue in Covid vaccine mandate cases.  The Fifth Circuit is currently deciding a case in which a class of approximately 1,000 employees is challenging United Airlines’ Covid-19 vaccine mandate.  The company rejected the class members’ exemption requests because it believed the requests were not sincerely rooted in religious beliefs.  Over the employer’s objection that examining the religious sincerity of exemption requests requires individual credibility determinations unsuited for a class action, a Texas district judge ruled that the plaintiffs could proceed as a class.  The Fifth Circuit just recently heard oral arguments in the case, and the panel’s comments suggested division along political lines.   

We will see how the Fifth Circuit ultimately rules in the United Airlines case.  It is clear, however, that an employer defending the denial of a religious exemption to a Covid-19 vaccine mandate is facing an uphill battle these days.  If only they had known what was to come…

A federal appeals court seemed to split over whether the religious sincerity of United Airlines Inc. workers challenging the company’s Covid-19 vaccination policy can be handled in class litigation.

www.bloomberglaw.com/…