If you want to avoid a workplace vaccine mandate, be very careful what you post on social media about politics and vaccines.

According to the U.S. Equal Employment Opportunity Commission's Questions and Answers: Religious Discrimination in the Workplace, "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII." This is cited in the EEOC Compliance Manual § 12–I(A)(1).

Instead, per the EEOC, a religious belief concerns “ultimate ideas” about “life, purpose, and death."

To qualify for a vaccine exemption, you need a religious or medical reason, not a political one. 

In fact, employers are already combing the internet to confirm whether your claimed religious belief is insincere and merely a manifestation of your politics. Taking this a step further, if you sue your employer for failing-to-accommodate your religious beliefs, be warned that your social media posts are fair game and are a gold mine for a good trial lawyer who will tear you apart on the stand. 

As background, the underpinnings of the EEOC's position stems from the United States Supreme Court, which first set the test for a sincerely held religious belief in U.S. v. Seeger, when conscientious-objectors sought accommodations from service in the armed forces (a/k/a, draft exemptions). Per the Supreme Court, the test is "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This test was adopted to the employment discrimination context by the Third Circuit Court of Appeals in Protos v. Volkswagen of America, Inc. 

Back to you. An employer can and should challenge whether you sincerely hold your espoused religious belief before granting you an accommodation from its rules and policies, like a vaccine mandate. 

As an illustration of what you are looking at in such a challenge, see the case of Sidelinger v. Harbor Creek School Distr., where an employee sought a religious exemption from his employer's "requirement of wearing an identification badge" because of his claims that wearing a badge evoked the "sins of pride and hypocrisy contrary to his religious belief... [as] an old-fashioned, very conservative Roman Catholic." In the case, the District Court made clear that while it would not question the truth of the belief, it would certainly question whether the employee truly held that belief. Further, the Court emphasized that it is an employee's burden "to show that he holds a sincere religious belief in conflict with his employer's requirements." Finally, the Court explained that an employee's sincerity and credibility are the basis for a factbinder's assessment, which includes internet posts. By the way, the Court found that the employee did NOT qualify for a religious accommodation. 

Are your claimed religious objections to the COVID vaccine sincere or BS political crap? 

Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 

1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.

Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York. 

This case addressed whether minimum income requirements for rentals are discriminatory. 

What do you think?

Should a landlord be able to screen tenants based on their income?

The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 

To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 

Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 

So, keep a close eye on this one. 

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here. 

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

• "[B]odily integrity and the right to refuse medical treatment;"
• A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
• It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.

In an effort to further provide adequate COVID-19 safety protocols for federal contractors and subcontractors, on September 9, 2021, President Biden signed Executive Order 14042, requiring federal agencies to ensure that contractor and subcontractor contracts contain a clause requiring contractors and subcontractors to comply with all guidance for workplace locations published by the Safer Federal Workforce Task Force ("SFWTF").

President Biden established the SFWTF in order to provide guidance to the heads of Federal Govt. agencies on employee safety during the ongoing COVID-19 pandemic. By September 24, 2021, the SFWTF will provide explanations of protocols required of contractors and subcontractors to ensure workplace safety compliance at workplace locations. Stay tuned for further information as it becomes available. 

It appears that Executive Order 14042 goes hand-in-hand with Executive Order 14043, also signed by President Biden on September 9, 2021, which requires COVID-19 vaccinations for all federal employees, subject to certain exceptions. Additionally, by September 16, 2021, the SFWTF is required to provide guidance to federal agencies who must implement a program requiring COVID-19 vaccination for its employees. Stay tuned for our analysis of that guidance as well. 

Clearly, President Biden has taken drastic steps in an attempt to slow down the spread of the ongoing COVID-19 virus. 

It will be interesting to see what guidance protocols the SFWTF comes up with over the course of this month - do you think it will be challenged in court? 

Stay tuned...

We have been inundated with calls this morning, since Andrew Lieb's appearances on Fox 5, LI News Radio, and WFAN this past week so we thought it was important to put some general information out there for those seeking a vaccine exemption based upon sincerely held religious beliefs. 

To be clear, a sincerely held religious belief DOES NOT automatically get you an exemption from a vaccination requirement.

Instead, your religious belief will, at best, get you an adjustment (known as an accommodation) to a vaccine requirement if such adjustment does not create an undue hardship for your employer. 

Let's break that down a little further.

First, the Equal Employment Opportunity Commission (EEOC) tells us what a sincerely held religious belief is means here. In summary, a sincerely held religious belief "concerns 'ultimate ideas' about 'life, purpose, and death.' Social, political, or economic philosophies, as well as mere personal preferences, are not 'religious'," 

As a result, if you want to claim a religious exemption, DO NOT make vaccine mandates POLITICAL. Instead, make your objection to vaccines SOLELY about your vision for life, purpose, and death. 

Moreover, don't be defeated if you are not a practicing member of an organized religion or if your religious leaders disagree with your ultimate ideas. Specifically, EEOC tells us that "new, uncommon, [beliefs, which are] not part of a formal church or sect, [and] only subscribed to by a small number of people, or that seem illogical or unreasonable to others" also qualify.  

That being said, there is another prong to the law that is being lost in the conversation today. 

An exemption to a vaccination requirement need only be given if it does not present an undue hardship to your employer.

Under federal law, employers are in the driver's seat because an undue hardship is anything that creates more than a de minimis cost. So, unless a worker works from home and wants to continue to work from home it will be a challenge to find a vaccine accommodation request that qualifies. Barriers, masks, tests, changed hours, modified locations, and the like will likely pose more than a de minimis cost and therefore, an accommodation request can be denied. But, that is ONLY under federal law. 

States, like New York, afford workers with more rights. In New York, a worker should receive an accommodation unless it imposes a significant expense or difficulty on an employer. That being said, accommodations that compromise the safety of others, such as co-works, customers, and the public, at large, always create undue hardships on employers. Therefore, workers should be highly conscious of public health when making their requests.

Putting this all together, a worker should carefully draft their accommodation request form and emphasize that they truly have a sincerely held religious belief by focusing away from politics and instead, on such issues as life, purpose, and death. Then, a worker's request should suggest alternatives to the vaccine such as limiting contact with others, regular COVID testing, and masking. Then, if the worker gets denied, they will have a good case for employment discrimination, which can and should be filed in court.

If that is the route that you are thinking, please hire a lawyer from the get go. Get any employment lawyer, at the start of it, because you are going to need to ensure that your initial accommodation request form (and other communications) do not kill your case before it's filed. You are also well advised to keep your politics out of it, out of social media, and away from your daily conversations. If you are truly seeking a religious exemption, politics aren't what is relevant, your right to worship freely is what matters.

The Federal Court for the Northern District of New York has enjoined vaccine mandates based upon sincerely held religious beliefs by way of issuing a Temporary Restraining Order in the case of Dr. A v. Hochul.  

Here is how the plaintiffs' argued that the vaccine violate their sincerely held religious beliefs - "vaccines [] were tested, developed or produced with fetal cells line derived from procured abortions." According to the plaintiffs:

 Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).

 Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.

 Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Further, plaintiffs religious beliefs are that they "oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent" and follow "spiritual leaders... who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise" and finally, their "religious conviction [is] against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs."

To be clear, the case is far from over with the next court deadline for the defendants to respond being set at September 22, 2021 at 5pm. As of this moment, no preliminary injunction or permanent injunction has been ordered. At this stage, the court has merely granted a temporary restraining order, which prohibits the denial of "religious exemptions from COVID-19 vaccination" until round two of the case.

However, if you are the type of person who has a sincerely held religious belief against vaccination, you should use this case as your blueprint to request an accommodation.