EagleHerald Staff Writer

MARINETTE—The Oct. 15 cutoff date for Aurora Advocate Health (AAH) employees to get their mandatory COVID-19 vaccination has passed. Some employees will be staying on as team members despite remaining unvaccinated for religious reasons.

AAH gave individuals the opportunity to file a COVID Vaccination Religious Exemption Request Form by Aug. 27 after its Aug. 4 mandate requiring all employees in the network to get a COVID vaccine. Those who were granted their request are exempt from receiving the vaccine for the duration of their employment with AAH, according to the form. In an email statement to the EagleHerald, AAH explained that a multidisciplinary group with members from the healthcare network’s human resources, spiritual care and ethics teams reviewed the requests on a case-by-case basis.

Several local law firms said they don’t know of attorneys in Marinette or Menominee counties that are currently handling cases related to COVID vaccine exemptions based on religious belief. It appears that Marinette and Menominee residents seeking legal advice on this matter have had to consult with attorneys in larger cities outside of either county.

Milwaukee-based Managing Attorney of Cross Law Firm Nola Hitchcock Cross, who represents employees in workplace discrimination cases, is one attorney who serves clients in Marinette. She emphasized that, while cases involving COVID vaccines are receiving heightened attention compared to other shots, religion-based exemptions from mandatory vaccination are not without precedent.

“We deal with similar cases every year when Advocate Aurora mandates flu shots,” she said. “We’re not reinventing the wheel.”

Legally speaking, vaccine exemptions based on religion trace back to Title VII of the 1964 Civil Rights Act, part of which stipulates that employers “reasonably accommodate” the religious beliefs and practices of their employees, according to the U.S. Equal Employment Opportunity Commission.

Employers, however, are only obligated to provide accommodations if they do not “impose an undue hardship” on business operations, a balance that may be difficult to manage in particular for healthcare providers.

Hitchcock Cross said that, in the case of COVID vaccinations, employers have to “work the fine line to keep everyone safe and also happy” because of the potential risk to patients that unvaccinated employees could present.

“If you’re a nurse and you see patients every day, it’s going to be difficult to accommodate you without harming patients,” she said. “If you’re a nurse in the administrative office, on the other hand, it will be much easier to find some kind of accommodation.”

Although such situations have occurred to some extent in the past, Milwaukee-based Goldstein Law Group, S.C. Owner and Attorney Mark Goldstein, who provides legal advice to employers, said that in his experience prior to COVID, businesses didn’t often deal with religion-related requests for vaccine exemption. “Cases dealing with religion as related to health or safety standards were a vast minority compared to cases related to other areas of Title VII,” he said.

“For whatever reason, there’s so much more tension around the COVID vaccine, it’s so much more controversial,” Oconomowoc-based Shareholder and Attorney with Wessels Sherman Law Firm Alan Seneczko said. Wessels Sherman represents employers in employment matters.

The topic is contentious to the point that some lawyers who handle other kinds of workplace discrimination cases will not work with clients who are looking for vaccine exemptions for religious reasons.

One of these lawyers is Madison-based Employment Law and Civil Right Attorney Amy Scarr. "I cannot provide zealous representation of individuals asking for religion-based exemptions because I strongly believe in the importance of vaccinations," she said. 

COVID vaccines may also be changing the extent to which businesses and individuals understand and implement the protections of Title VII. Hitchcock Cross said that, in her experience, it seems smaller businesses tend to know less about discrimination laws. On the other hand, Seneczko said he thinks most employers are generally familiar with the details of Title VII.

Some employees, he added, seem to be implementing the protections under Title VII to avoid vaccines without having a “genuine ‘sincerely held religious belief’ as a basis for their objection.”

“I think that, whether they are becoming more educated about religious exemptions or not, people are trying to use them as a mechanism to avoid getting the vaccine,” Seneczko said.

Seneczko and Goldstein both emphasized that most major religions don’t have specific doctrines prohibiting vaccinations.

The definition of what constitutes a religion, however, is more open-ended as it relates to Title VII. Protection under Title VII includes not only members of traditional, organized religions, but also those with sincerely held ethical or moral beliefs, according to the U.S. Equal Employment Opportunity Commission.

“Belief is highly individualized,” Hitchcock Cross said. “The person asking for an exemption doesn’t have to necessarily be part of an established religion, although it’s usually easier to get protected status if they are.”

Individuals seeking an exemption for religious reasons, furthermore, can be newly converted and do not have to consistently observe their religion, according to the U.S. Equal Employment Opportunity Commission.

Hitchcock Cross said she has dealt with such cases in the past.

“I had a client who became a Christian Scientist after she got breast cancer three years ago, so she potentially had gotten shots before converting and then decided that, following her religion’s doctrine, she didn’t want to get them afterward,” Hitchcock Cross said. The Christian Science faith, founded by Mary Baker in 1879, has a doctrine that discourages medical intervention, according to the Park Ridge Center for the Study of Health, Faith and Ethics.

Although protection against religious discrimination is written into law, Seneczko said there is “not a huge amount of guidance” for employers when it comes to handling religion-based employee requests for vaccine exemptions. The process for granting such exemptions, he said, can vary from business to business, and many employers “are still trying to figure out how it works.”

The AAH exemption request form, for example, suggests that employees provide details such as proof of “consistent practice over time” that support their sincerely held religious beliefs, an element that seems to contradict the leeway provided under Title VII.

Goldstein also said it appears that many conflicts related to vaccine exemptions for religious beliefs are “being resolved informally” within businesses before they reach any official legal process. Seneczko emphasized, moreover, that some employers may be more lenient in granting exemptions compared to others.

“If you’re an employer, you might be on the side of not wanting mandatory vaccines,” he said. “That’s the quandary for businesses. If you enforce a vaccine mandate, how many of your already scarce employees are you going to lose? Most non-healthcare businesses, at least the ones that I’ve dealt with, are not really interested in mandatory vaccines because they can’t afford to lose workers. So some employers may not scrutinize each request very closely.”

The difference in demand from employees versus employers may be indicative of this conundrum; while Hitchcock Cross said her firm has been receiving calls on a daily basis from people asking for assistance in obtaining vaccine exemptions, both Goldstein and Seneczko said they aren’t currently working on any cases related to the matter involving employers in Marinette or Menominee Counties.

It’s unclear at this time what the staffing situation is like at the Aurora Medical Center-Bay Area in Marinette. AAH did not respond to inquiries from the EagleHerald regarding the number of its employees at the Bay Area branch who are exempt from getting a COVID vaccine for religious reasons.