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Laws that “were created to protect people” threaten to weaken US Covid vaccine mandates

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Epidemiologists worry that the vaccine-hesitant will feel emboldened to skirt vaccination restrictions as a result of this loophole, undermining the state’s efforts to combat the outbreak. In addition, lawyers and legal experts are preparing for an avalanche of complaints on the hazy definition of “sincerely held” objections to the vaccination.

Covid-19 vaccinations became mandatory for California kids this month for the first time, but the rule included a loophole: students would be allowed religious exemptions.

California, which now has the lowest coronavirus case rate in the United States, has issued a series of sweeping mandates requiring healthcare workers, governmental employees, caregivers, and schoolteachers to all receive the vaccine.

However, Californians have the option to request exclusions based on their personal beliefs in each of these situations, and they are doing so in record numbers.

Many parents and even some teachers have spoken out against the rules, prompting walkouts and rallies around the state. On Monday, parents protested the public health measures in rural northern California and conservative parts of the south, declaring that they would not “co-parent with the government.” Teachers from a Los Angeles school district who were granted religious exemptions demonstrated outside the district’s headquarters last week.

Meanwhile, the Los Angeles Fire Department received over 450 exemption requests, while a fourth of the Beverly Hills Fire Department requested exemptions. In San Francisco, about 800 public employees, including police officers and firefighters, have requested exemptions, but the city has yet to grant a single request.

As state and city officials have become more stringent in enforcing laws, a grassroots movement of anti-vaccine and religious groups has come up to assist people in avoiding them. A megachurch pastor in Rocklin, California – just north-east of the state capital, Sacramento – has been giving religious exemption letters to anyone who wants them. Pastor Greg Fairrington of Destiny Christian Church, who has staged a protest at the state capitol against vaccine requirements for school children, healthcare workers, and first responders, has stated that he is not anti-vaccine, but that “the vaccine poses a morally compromising situation for many people of faith”. The Christian legal advocacy firm Liberty Counsel also provides letter templates for claiming a religious exemption.

“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 who has a vaccine exemption not only risks contracting the coronavirus, but also spreading it to one of the hundreds of other individuals they interact with – particularly immunocompromised individuals who are more likely to catch the virus even if vaccinated.

Because laws safeguarding religious or philosophical objections provide significant discretion for those requesting waivers, and because there is widespread disinformation about the safety of the Covid-19 vaccination, Garcia is concerned about how many people will take advantage of the waivers. She believes that, in the end, it may not matter that not just public health officials but also prominent religious leaders have urged people to get vaccinated. Indeed, Pope Francis, Church of Jesus Christ of Latter-day Saints leaders, Orthodox Jewish rabbis, and Islamic authorities in the Fiqh Council of North America have all endorsed the vaccine.

Leaders of extreme religious groups have been fueling and spreading anti-vaccine fury on social media, magnifying the tried-and-true technique of citing personal beliefs and first amendment freedom of religion and expression to bypass public health rules.

Federal and state laws protect workers who refuse a vaccine because of their religious or philosophical values, which can be widely defined. Beliefs based on the teachings of a religious dogma are protected, but so are other “sincerely held” beliefs or observances significant to an individual, according to Dorit Reiss, a law professor at UC Hastings. The best an employer may do to dispute waiver petitions is to question employees about the consistency of their beliefs — if they oppose the vaccine because they oppose the use of fetal tissues in research, do they also refuse to take Tylenol, Tums, and other drugs made with fetal tissues? However, the strategy is “rife with legal pitfalls,” according to Reiss. Finally, a honestly held belief does not have to be rational or coherent to be protected by the law.

These laws are robust 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. However, they were not intended for situations in which one employee’s religious system endangers the lives of others, according to her.

Workplaces and agencies that refuse to give exemptions must provide “reasonable accommodations” for employees who do not want the vaccine, which might include unpaid leaves, reassignment, or work-from-home allowances, according to Reiss. Employees, on the other hand, can and do file lawsuits to oppose such decisions.

And, while anti-vaccine webpages and communities have freely admitted for years to misleading about their faith in order to acquire exemptions, as Reiss discovered in a 2014 review of such sites, “the pandemic has increased the scale” at which the strategy is used. Meanwhile, employees with disabilities, including those who are immunocompromised, have limited options for retaliating against coworkers who claim exemptions.

Hanna Sweiss, an associate at the law firm Fischer Phillips, said that in recent days she and her colleagues have been swamped with questions from employers in healthcare, hospitality, and other businesses about how to obey with vaccine requirements – including approaching federal mandates for workplaces – while chasing down waiver requests.

“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 overwhelm state agencies and school districts, public health professionals and parents have urged lawmakers to strengthen exemption laws, as they did in 2015 when they repealed the personal belief exemption for paediatric vaccines. However, that provision does not apply to vaccine obligations imposed without a legislative vote. Richard Pan, a doctor and state senator who drafted the 2015 bill, has stated that if cases rise again, he will consider closing the loophole.

Image Credit: Getty

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