Exemptions to the COVID-19 Vaccine

And an update on the federal vaccine mandates

I’ve had a ton of questions about the status of the various federal COVID-19 vaccine mandates (OSHA, federal contractors, CMS). In this post I’ll explain (1) the status of these mandates; and (2) strategies for filing medical/religious exemptions. If you have questions on mandates or exemptions, comment and I’ll do my best to answer.

The Federal COVID-19 Vaccine Mandates

The OSHA Mandate

On November 5, OSHA published its emergency temporary standard (ETS) requiring private employers with over 100 employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.”

The OSHA Mandate had an exception that employers could also adopt a policy requiring employees “to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” However, the employees were to bear the costs of COVID-19 testing. OSHA predicted the costs of compliance (another term for coercion) would cause more employees to be vaccinated.

A number of lawsuits were filed across the nation once the OSHA Mandate was published. The Fifth Circuit court of appeals issued a stay of the OSHA Mandate on November 12, stating:

“Enforcement of the Occupational Safety and Health Administration’s ‘COVID-19 Vaccination and Testing; Emergency Temporary Standard’ remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.

In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.”

As stated by the Fifth Circuit, the OSHA Mandate “runs afoul from the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our liberty.”

This stay is still in place, despite the collective OSHA cases essentially being consolidated for consideration in the Sixth Circuit. What does this mean? It means the OSHA Mandate is not in effect. (The OSHA Mandate was to be implemented on January 4, 2022 – but that is on hold as well.) OSHA recognizes this and has “suspended all activities relating to the implementation and enforcement” of its mandate.

We previously addressed the unconstitutionality of the OSHA mandate, arguing (among other things) that OSHA ran afoul of the major questions doctrine (also known as the major rule doctrine), in that OSHA issued a major rule without clear Congressional authorization.

“Legal experts” disagreed – and Twitter was aggressive in assuring the public that the OSHA mandate was legal.

It’s a bit early to take the victory lap (save that for after the Supreme Court makes its ruling – fingers crossed), but the Fifth Circuit made the same observation as we did back in September – that under analysis from the major questions doctrine, the OSHA Mandate exceeds the agency’s authority.

The CMS Mandate

11 states recently filed a lawsuit in a Louisiana federal court challenging the Biden Administration’s rule requiring vaccination of staff of Medicare and Medicaid providers and suppliers (which we will refer to as the CMS Mandate). Read the lawsuit here and the press release here.

The CMS Mandate requires the first dose of the vaccine by December 6, 2021 and the second dose (if Pfizer or Moderna) by January 4, 2022. Health care companies/providers must ensure that all applicable healthcare workers “are fully vaccinated” by January 4, 2022.

While the lawsuit has been filed, the court has not stayed the CMS Mandate. There is no guarantee that the court will pause the CMS Mandate pending the results of litigation. This means that if you are under the CMS Mandate, it is essential that you aggressively pursue a medical or religious exemption (or both).

The Federal Contractors Mandate

Finally, we get to the Federal Contractors Mandate. On September 9, 2021, President Biden issued an executive order requiring COVID-19 vaccination of federal contractors (or employees of federal contractors). Lawsuits have already been filed asking courts to stop the implementation of this mandate pending litigation.

Like the CMS Mandate, no court has paused the implementation of the Federal Contractors Mandate, which requires covered federal contractor employees to be vaccinated by January 18, 2022. I repeat myself that if you are covered by this mandate, you must not rely on the courts for protection and be proactive with your religious and medical exemptions.

Medical Exemptions

If you are considering a medical exemption, pay attention. The good exemptions follow a straightforward formula and provide citations to prove their claims:

1. State with particularity the ailment or health issue the person suffers from, whether currently or in their past.

2. Explain that the COVID-19 vaccine has not been tested on persons with this particular ailment or health issue.

3. Explain why the lack of testing means the COVID-19 vaccine has not been confirmed to be safe for people with your particular affliction. (For example, if you have history of irregular heartbeat, the medical exemption letter might discuss how there are no studies proving the COVID-19 vaccines are safe for those with an irregular heartbeat. Make them prove otherwise.)

Religious Exemptions

It is your right under Title VII, 42 U.S.C. § 2000e to make a religious exemption. I’ve seen them work for employees and for students.

The religious exemptions i’ve seen find success have been where the person tells their employer that their sincerely held religious beliefs preclude them from taking the COVID-19 vaccines, as they are derived from aborted fetal tissue cells. If you hold these beliefs, then you might want to consider this type of argument: This vaccine is thus harvested from sin, and my acceptance of such a vaccine would make me complicit in the desecration of God’s creation.  

Do not copy and paste someone else’s religious exemption letter. Use it as a template, improve upon it – you must be proactive. Applicable verses/links:

1. 2 Timothy 3:16-18 (“All Scripture is inspired by God and beneficial for teaching, for rebuke, for correction, for training in righteousness; so that the man or woman of God may be fully capable, equipped for every good work.”)

2. 1 Corinthians 6:19-20 (“Do you not know that your bodies are temples of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your bodies.”)

3. Psalm 139:13-14 (“For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well.”)

4. Romans 12:2 (“Do not be conformed to this world, but be transformed by the renewal of your mind, that by testing you may discern what is the will of God, what is good and acceptable and perfect.”)

5. US Conference of Catholic Bishops and other leading Christians stating that no Americans should have to choose between their conscience and the vaccine. Link to their letter.

6. This lawsuit filed by Liberty Counsel challenging denials of military exemptions is a good resource. It lays out the history of the fetal cell cultures, the Biblical basis for an exemption, and additional verses for reference.

Questions?
If you have questions, ask in the comments and I’ll do my best to give an answer. (Legal disclaimer: this is not legal advice and I’m not your lawyer.)