"How long have you held the religious belief underlying your objection?" The tone of the Biden administration's questionnaire template is aggressive and confrontational. The opening inquiry sounds more natural coming from someone with a gun to your head. Yet it is one of seven questions suggested by the Safer Federal Workforce Task Force to use when evaluating applications for religious exemptions from the COVID vaccine mandates. Other questions require employees to distinguish the COVID vaccine from others they may not object to, probe their medical history, and imply that religious exercise is limited to worship.
"Even though they've yanked back that template after scrutiny," explained Equal Employment Opportunity Commissioner (EEOC) Andrea Lucas on "Washington Watch", "it's not clear whether or not agencies are updating the forms they're using." Before significantly revising the questionnaire, the Biden administration distributed it to all executive agencies and also made it available to private companies. In response, the EEOC posted their own sample accommodation form to their website -- an unusual move, but one they thought was justified by the high volume of questions they were receiving.
The Biden administration's original questionnaire threatened applicants, "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." In other words, the questionnaire assigns to individual employees the burden to prove the sincerity of their religious belief. Oh, and the government will be the judge of what counts as proof -- the same government that created a mandate by fiat after admitting it didn't have the authority.
But the government isn't competent to judge religious claims; that is one foundation of the establishment clause. For the government to reject the sincerity of a religious claim, said Lucas, "the law is very clear you need to have some objective basis to do a very limited inquiry." Just as the government needs a reason to obtain a search warrant under the 4th Amendment, so the government needs a reason to disbelieve a person's religious claim under the First Amendment. This questionnaire amounts to a government fishing expedition for an excuse to deny religious exemptions. "Starting right off the bat with a bad faith assumption about your own employees," argued Lucas, is "the wrong way to go after things." It depicts "hostility to religious employees," something courts don't treat kindly.
Lucas also warned private companies, "if you screw up the religious accommodation process, not only might you incur accommodation related claims, but you can also easily veer into religious harassment claims, religious discrimination claims or religious retaliation claims. So there's a broad array of liability." So why go along with an unsubstantiated edict from an overreaching administration that likely won't survive in court?
By the way, Andrea Lucas shows what government can do at its best. We conservatives often avoid using government whenever possible because we believe smaller government is better. But when it comes to protecting religious freedom in employment, that's what the EEOC is for.
How can employees gain a hearing when your employer refuses to grant you one? Federal employees "should first file an internal complaint within their own agencies," said Lucas, but if they are denied, "eventually they could end up before the EEOC jurisdiction." Federal contractors and private employees covered by President Biden's vaccine mandates "can file directly with the EEOC" using their "user-friendly portal."
For many people, getting the shot is a wise and prudent course. But if doing so would burden your conscience, don't accept the government's stonewalling; they can't deny legitimate religious exemptions to a sweeping mandate.