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Rockford, Ill. —September 16, 2021—Noel Sterett, a religious freedom attorney with national law firm Dalton & Tomich, has spent nearly 15 years fighting for religious liberty in courts across the country. He has represented synagogues, mosques, churches, religious schools and meditation centers and argued cases on behalf of Baptist street preachers, Orthodox monks, Catholic nurses, and even gang members turned evangelists. Now he finds himself empathizing with employers who are struggling to deal with a flood of potentially dubious religious exemption claims from their vaccine mandates.
“Contrary to what Facebook friends may say, employees do not have a constitutionally guaranteed right to a religious exemption from an employer’s vaccine requirement,” Sterett said. “For starters, the Constitution limits government authority and action—not those of private entities. So, unless an employer is a government entity or acting under color of law, employees cannot assert a constitutional right against their vaccine requirements.”
Even if the employer is a government entity, Sterett explains the Free Exercise Clause of the Constitution does not require the employer to provide a religious exemption if the policy is otherwise generally applicable and religiously neutral. That’s why almost all vaccine mandate challenges have gone in favor of the government employers, and that trend is unlikely to change.
Private employers, especially in at-will employment states like Illinois and Michigan, enjoy even greater leeway to impose vaccine mandates. They are not limited by the Constitution and can usually avoid liability under Title VII of the Civil Rights Act—which only requires a showing that a religious accommodation would cost the employer more than a de minimis, or minimal amount. Even so, Sterett says many employers are doing their best to offer religious exemptions because they cannot afford to lose employees now. But here’s the rub: it is the availability of religious exemptions that has led employees to falsely claim that their objection to the vaccine is based on a sincerely held religious belief.
“When pressed, many employees cannot articulate what religious belief prevents them from taking the vaccine. At the same time, none of the mainline religious groups have come out against the vaccine,” Sterett said. “As a religious liberty advocate, I am deeply concerned that these insincere claims will increase public and judicial skepticism of religious exemption claims in general. Those with sincere claims in the future may find a less receptive audience as a result of those individuals currently ‘crying wolf’.”
In the meantime, Sterett affirms employers’ legal rights to question and verify any claims of religious exemptions and adds that public and private employers in Illinois should pay particular attention to the Illinois Health Care Right of Conscience Act.
“Based on my extensive experience litigating under the Illinois Health Care Right of Conscience Act, I can attest that it is the gold standard in statutory conscience protections. However, there are only a handful of cases interpreting it, and none of them apply the Act in the context of an employer’s vaccine mandate,” Sterett said.
Sterett explains the Illinois Health Care Right of Conscience Act was primarily put in place to protect the right of health care professionals to refrain from participating in abortion related matters, although it was written in a much broader fashion. He says if employers are not properly advised, they could wind up facing a lawsuit from an employee seeking three times their actual damages (including lost wages, pain and suffering, etc.) and their attorney’s fees under the Act.
“It is my sincere hope that employers and employees alike can find workable solutions in these tense and volatile times; understanding respective rights and obligations under the law is the first step,” Sterett said. “Good employer-employee relationships aren’t built on a battle of rights; they often require a level of mutual sacrifice.”
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