The Biden administration’s questionnaire for evaluating requests for religious exemptions to vaccine mandates asks such detailed questions about faith and medical history that employees may find them intrusive and hostile.
“How long have you held the religious belief underlying your objection?” is one question on the questionnaire, which originates from a “template” provided by the Safer Federal Workforce Task Force. The task force was created on day one of the Biden administration “to give the heads of federal agencies ongoing guidance” about “operating during the COVID-19 pandemic.”
The template is being used by the Departments of Homeland Security, Commerce, and Agriculture, the General Services Administration, and likely other agencies. The Department of Justice is using 6 of 7 questions from the template.
Another question asks if and when exemption-seekers have received any vaccines as an adult and “If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines.”
“If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them,” is another question.
If adopted by federal agencies and copied by private businesses seeking to follow the federal government’s lead, the questionnaire for exemption-seekers may result in significant litigation by religious employees, Andrea R. Lucas, a Republican commissioner at the Equal Employment Opportunity Commission, told The Federalist. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against an employee because of the person’s religion.
“The law does not provide a pandemic-related exception for disregarding the rights of religious employees,” Lucas told The Federalist. “No matter the context, intrusive questions presuming insincerity from the start, seeking to ‘catch’ an employee in an inconsistency, and looking for any reason to deny a religious accommodation request, are inappropriate.”
Millions of Americans are subject to vaccine mandates. Federal employees are required to receive a Covid-19 vaccination, with religious and medical exceptions only as required by law, by November 22 (or November 8, since employees are not considered fully vaccinated until two weeks after a single-shot vaccine or until receiving the second dose of a two-part vaccine). Federal contractors have until December 8. Thus, many agencies would have already required religious exemption requests to have been submitted.
The questionnaire could also align with the forthcoming Occupational Safety and Health Administration guidelines for companies with 100 or more employees to require Covid vaccination of their workforces.
Sen. Josh Hawley, R-MO, has called on the government to rescind the questionnaire, saying it “evinces a skepticism and indeed a hostility to applicants who harbor sincerely held religious objections to the Covid-19 vaccine. I fear this will chill applications by civil servants to apply for religious exemptions.”
Form Questions Your Sincerity
“To be eligible for a possible exception, you must first establish that your refusal to be vaccinated is based upon a sincere belief that is religious in nature,” the questionnaire states.
Some people object to getting the Covid vaccines due to the use of abortion-derived cell lines in their testing and development. The questionnaire asks employees to describe the nature of their objection to the Covid-19 vaccination requirement and to explain if and how complying with the requirement would substantially burden the employee’s religious exercise.
“If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them,” reads another question.
Condescension toward the Religious
“The form is dripping with suspicion and condescension in an attempt to discredit well-known religious beliefs concerning the use of aborted fetal cell lines in drugs,” according to Roger Severino, a senior fellow at the Ethics and Public Policy Center and former director of the Office for Civil Rights at the U.S. Department of Health and Human Services.
The government has “no business second-guessing the religious beliefs of its employees,” Severino said in an interview with The Federalist. The Supreme Court has made clear that religious beliefs can be idiosyncratic, but as long as they are sincere, they must be taken at face value, he added.
The questionnaire “smacks of a religious test,” which may be unlawful, according to Severino. A better approach would be to offer exemption requestors a form asking about the nature of their objection to the vaccine only to see how it could be accommodated, then having them sign under penalty of perjury, he said.
Legal Problems with the Questionnaire
If federal agencies and private companies adopt the task force’s template, it could lead to potential violations of Title VII of the Civil Rights Act of 1964 and of the Americans with Disabilities Act, according to Sharon Fast Gustafson, former Republican general counsel at the EEOC.
The question “Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise? If so, please explain how” is too narrow, Gustafson said in an interview. Title VII does not just protect religious “exercise” but also “religious beliefs, practices, or observances.”
Some of the questions could also lead to violations of the Americans with Disabilities Act by subjecting federal employees to invasive medical questions, which could result in the employee disclosing information about a disability or other medical condition. The questionnaire could give rise to federal employees bringing religious discrimination, harassment, or retaliation claims, in addition to failure to accommodate claims, according to Gustafson.
Against EEOC Guidance
The questions (three through six) about the length of holding religious beliefs, receiving other vaccines, and religious objection to other vaccines and medicines, may also go against EEOC guidance, Gustafson believes. That guidance says, in part:
Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? (10/25/21)
Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.
EEOC guidance on religious discrimination also says that “employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.”
The government’s decision to ask about whether employees’ religious beliefs, practices, or observances have been consistent may suggest that federal agencies are gearing up to reject accommodation requests by any employees who reveal such inconsistencies. But EEOC guidance notes that “an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held.”
Notably, the EEOC is not part of the Safer Federal Workforce Task Force that created the template. For EEOC employees requesting exceptions to the vaccine mandate, the EEOC itself uses a different religious accommodation form than the task force’s template.
The EEOC’s equivalent questionnaire, currently in use at the commission, simply asks the employee to “describe the nature of your sincerely held religious beliefs or religious practice or observance” that conflicts with an EEOC requirement. It also asks, “What is the accommodation or modification that you are requesting?” and “List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.”
Too Late for Some
Since federal employees who filled out the template by their agency’s deadline already have been subjected to these questions, those employees may already have discrimination, harassment, or retaliation claims against the government — even if the government changes the form or ultimately grants these employees their requests for accommodations.
Some federal employees who were deterred by the inappropriate questions on the template may have missed their agency’s submission deadline, harming their ability to get an accommodation and possibly causing termination. Others may have violated their conscience and gotten the Covid vaccination instead of risking being terminated.
The exemption request must be signed to declare it is true and correct. “Any intentional misrepresentation to the Federal Government may result in legal consequences, including termination or removal from Federal Service,” it warns.
The Covid task force that produced the form adds in its guidance that if granted a religious exemption to the vaccination requirement, the employee would instead be required to comply with alternative health and safety protocols. However, the agency may determine that only a vaccine is adequate for safety and deny the religious exemption.