The Biden administration on Friday altered its questionnaire for evaluating requests for religious exemptions to a vaccine mandate, but concerns that the form violates religious liberties remain.
The Safer Federal Workforce Task Force, which gives federal agencies ongoing guidance about operating during the COVID-19 pandemic, had provided the agencies a questionnaire for evaluating requests for religious exemptions to Covid-19 vaccine mandates. Several federal agencies had been using the earlier version.
The earlier version was removed from the task force website on Friday (an archived copy remains) and replaced with the altered version. The Federalist had reported on Thursday about concerns with the earlier version.
In one change, a question about the use of medicine that may have violated the Americans with Disabilities Act (ADA), was cut.
A question that may have infringed on religious protections was also broadened. “Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise?” remains, but the new version of the form asks if the vaccine may also “conflict with your sincerely held religious beliefs, practices, or observances.”
“The extent of these changes implicitly recognizes the unfortunate and considerable litigation risk the original posed to employers that used — or continue to use — it,” Andrea R. Lucas, a Republican commissioner at the Equal Employment Opportunity Commission (EEOC), told The Federalist.
The updated questionnaire asks, “How long you have held the religious belief underlying your objection” to the vaccine and “Whether your religious objection is to the use of all vaccines, COVID-19 vaccines, a specific type of COVID-19 vaccine, or some other subset of vaccines.” It also asks “Whether you have received vaccines as an adult against any other diseases (such as a flu vaccine or a tetanus vaccine).”
Questionnaire May Still Violate Religious Liberties
The new questionnaire is “a marked improvement” over the earlier version but remains potentially problematic, Sharon Fast Gustafson, former Republican general counsel at the EEOC, told The Federalist.
“Whether an agency discriminates based on religion will depend on the manner in which it uses the template and the information it generates,” according to Gustafson. “Title VII requires accommodations for employees’ sincerely held religious beliefs, observances, and practices except where any accommodation would be an undue burden to the employer’s business.”
The new form seems to have fixed the violation of the ADA “but what they do with the answers and follow up may still violate Title VII” of the Civil Rights Act of 1964, 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, told The Federalist.
“It’s good to see the Biden administration retreat from its offensive inquisition into people’s theological beliefs. They should now make amends by removing whoever approved such a patently discriminatory policy in the first place,” Severino continued.
Updated Questions Evaluate Sincerity
The new form says “Agencies may consider several factors in assessing whether a request for an exception is based on a sincerely held religious belief, including whether the employee has acted in a manner inconsistent with their professed belief. But no one factor is determinative. An individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be based on a sincerely held religious belief.”
Unlike the old form, the new one says not every question must be answered.
Lucas, the EEOC commissioner, recommended employers instead use the EEOC’s form “as a better model for public and private employers.” The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against an employee because of the person’s religion.
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.
Separately, on Thursday a district court judge issued a temporary restraining order and preliminary injunction prohibiting the firing of civilian and active-duty military federal employees with pending religious exemption requests.
On Friday, the U.S. Supreme Court rejected an emergency appeal from Maine health care workers to halt a Covid-19 vaccine mandate that did not allow religious exemptions and that took effect Friday.