Legal actions on vaccine mandates spurred by the COVID-19 pandemic are waning, but employment experts say the mandates remain relevant for employers in industries such as public health because the landscape has changed regarding exemptions.

As vaccine lawsuits continue to draw attention (see related story below), experts say the federal government, following a 2023 U.S. Supreme Court decision, has partially clarified how employers should manage vaccine mandate exemptions requested by employees who claim that sincerely held religious beliefs prevent them from being vaccinated.

But employers should still tread carefully with mandates and disputing exemptions as case law develops, they say.

Vaccine mandates have long been a practice in health care because employees often work with vulnerable people who would be at greater risk if they contracted such illnesses as flu or measles.

“Those other vaccine requirements have not spawned nearly the same volume of litigation as COVID vaccine requirements we have seen litigated in the past,” said Michael Steinberg, a Boston-based associate with Seyfarth Shaw LLP.

COVID-19 put the issue in the spotlight because vaccine mandates affected workers across many industries, including sectors that had not previously been subject to such mandates.

Although the issue was often controversial at the time, many employers began mandating COVID-19 vaccines after they became available in late 2020.

In November 2021, the Occupational Safety and Health Administration, under an emergency temporary standard, required employers with more than 100 employees to mandate COVID-19 vaccines or require that workers be tested regularly — a move that affected some 80 million workers.

The Supreme Court in early 2022 struck down OSHA’s mandate for COVID-19 vaccines for large employers but kept in place the requirement for health care workers, allowing religious and medical exemptions.

Since then, employees in several industries, including health care, have filed lawsuits claiming their employers did not honor their religious exemption requests.

Considered more subjective and less easy to validate or disprove, religious exemptions have been viewed differently than medical exemptions, which employees can obtain if they can document that a vaccination would cause an adverse health issue or reaction.

Both exemptions under Title VII of the U.S. Civil Rights Act of 1964 require employers to provide accommodations for workers who claim they can’t get vaccinated or to show that it would cause them hardship if they have to accommodate an exemption request.

In June 2023, the Supreme Court changed that framework in Groff v. DeJoy, ruling in favor of a postal worker who claimed he could not deliver mail on Sundays for religious reasons. While the case didn’t involve vaccines, the decision was considered a sweeping change in the legal landscape involving religious accommodations in the workplace, establishing a heightened standard for determining whether a religious accommodation causes “undue hardship on the conduct of the employer’s business” under Title VII.

Given other recent rulings and regulatory changes, “a blanket (vaccination) policy is a bad idea,” said Courtney Malveaux, Richmond, Virginia-based partner with McGuireWoods LLP.

“For example, if an employer says all employees or all employees of a certain category must be vaccinated, that can raise a big red flag and can lead to litigation,” Mr. Malveaux said.

Jonathan Crotty, Charlotte, North Carolina-based partner with Parker Poe Adams & Bernstein LLP, said employers should have in place accommodation procedures and an interactive process “similar to what they’re doing for disabilities rights.”

During the pandemic, when controversies over vaccines were heightened, many employers dismissed religious exemptions as political stances.

“Employers believed that the request for accommodation really wasn’t based on a sincere religious belief, it was more political in nature … and therefore they were a little cynical or discounted what the employees were using as the justification for that,” Mr. Crotty said. “From a legal perspective, it’s very difficult to prove that an employee’s professed religious belief is not sincere.”

Most employers try to avoid vaccine mandates “unless they absolutely have to” put one in place to be in line with state laws or federal regulations, some of which are still in place for health care workers, said Randi Winter, Minneapolis-based partner with Spencer Fane LLP.

Religious exemptions and the legal outcomes are one of the reasons, Ms. Winter said. “Questioning the sincerity of a religious belief at this point, that’s a no-no. It’s too dangerous and ripe for challenge,” she said.

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Religious exemption legal wins put spotlight on employer practices

Recent decisions, settlements and at least one ongoing lawsuit continue to call into question employer practices related to religious exemptions for mandatory vaccinations.

A Catholic information technology worker who sued Blue Cross Blue Shield of Michigan for discrimination after the insurer fired her for refusing the COVID-19 vaccine on religious grounds was awarded $12.7 million in damages on Nov. 12. Lisa Domski claimed in her suit that her faith barred her from receiving the vaccine because fetal components were used in its development, according to Domski v. Blue Cross Blue Shield of Michigan, filed in U.S. District Court in the Eastern District of Michigan, Southern Division.

In U.S. District Court for the Northern District of California in San Francisco, a jury on Oct. 23 found in favor of six fired Bay Area Rapid Transit workers who sued the agency, claiming it failed to accommodate their requests for religious exemptions from a COVID-19 vaccine mandate.

In Lewis-Williams v. San Francisco Bay Area Rapid Transit District, each of the workers was awarded between $1.2 million and $1.5 million. The workers said in their complaint that the development of the COVID-19 vaccines possibly used aborted fetal parts, which went against their Christian faith, according to court records.

On July 29, Evanston, Illinois-based NorthShore University HealthSystem settled for $10.3 million a class action suit filed in the Northern District Court of Illinois on behalf of 523 current and former health care workers who claimed they were unlawfully discriminated against and denied religious exemptions from the COVID-19 vaccine mandate, according to Doe 1, et al. v. NorthShore University HealthSystem.

On that same day, the 7th U.S. Circuit Court of Appeals ruled in Passarella and Dottenwhy v. Aspirus Inc. that a lawsuit filed by two former employees of Aspirus, a nonprofit health care system in Wisconsin, could proceed. The employees claimed they were unlawfully denied a religious exemption from receiving the COVID-19 vaccine under Title VII of the Civil Rights Act of 1964 despite also having concerns over the vaccine’s safety. They claimed it was their right to trust in their faith rather than the vaccine.

In addition, a Catholic nurse at Saint Clare’s Denville Hospital in Denville, New Jersey, on Oct. 18 filed a lawsuit in Superior Court of Morris County against her employer, alleging the health care facility engaged in discrimination over religious exemptions from its mandatory influenza vaccination policy.

According to Alexandra Clark v. Saint Clare Hospital Inc., which seeks class-action status, the employer changed its policy in September to not accept religious exemptions. Ms. Clark claims in her lawsuit that her faith requires her to trust in God as the “creator and taker of life” and “not in vaccines.”