Governors ready to defend against Biden’s vaccine edict

Florida Gov. Ron DeSantis is ready to fight the Biden administration as soon as it issues its promised COVID-19 vaccine mandate for companies with 100 or more employees. “If the federal government can get away with doing this, what’s going to come next?” DeSantis said Friday.

He joined several other Republican governors and the Republican National Committee in condemning the president’s plan to require vaccinations for 100 million Americans. South Carolina Gov. Henry McMaster vowed to fight the mandate “to the gates of hell,” and President Joe Biden called GOP governors “cavalier.” DeSantis rejected the president’s finger-wagging, asking, “How could we get to the point in the country where you would want to have someone lose their job because of their choice about the vaccine or not?”

The orders the White House issued on Thursday say employees of affected companies who decline the COVID-19 vaccine may submit to a weekly test for the virus. The federal government will require vaccination of its employees and contractors—except for postal workers—with no alternative for those willing to submit to weekly testing.

White House officials stressed the government would allow a narrow exception for those with medical and religious objections, yet questions linger as to how it will handle requests for accommodation—particularly religious accommodation. For government workers, it will likely come down to the agency level as each federal agency implements guidelines consistent with the executive order.

Those seeking religious exemptions can seek refuge in Title VII of the Civil Rights Act of 1964, which requires that employers provide “reasonable accommodation” for an employee’s beliefs as long as doing so would not pose an “undue hardship” on the employer. Workers have tested the act’s protections in cases about religious observances such as the Sabbath—with less-than-promising results. So far, courts have not required much of a showing from employers citing hardship.

Employees with religious objections to the vaccine are also arguing government mandates violate their First Amendment rights. On Tuesday, a federal judge in New York granted a group of 17 medical workers, including doctors and nurses, a temporary restraining order against the state’s vaccine mandate, which did not allow a religious exception. The employees argue that the use of cell lines from aborted babies in the testing or manufacture of COVID-19 vaccines violates their religious beliefs.

Some companies have tried to push back against employees’ religious objections by questioning the sincerity of their beliefs.

“The law generally doesn’t allow an employer to challenge an employee’s religious belief unless it has in its possession facts that the belief is insincere,” said Liberty Counsel’s Robert Gannon—meaning a lot will depend on how individual employers treat exemption requests.

Douglas Laycock, a law professor at the University of Virginia, voiced concerns about the spread of religious exemption requests. “Courts tend to defer on sincerity, but when there is a large and organized secular movement resisting a requirement … religious claims generally lose, because it is impossible to separate the few sincere claims from all the phony ones,” he said—meaning a cavalier resort to the religious exemption could actually hurt the cause of religious liberty in the long run.

As with lockdown edicts, so with vaccine mandates: In Biden’s words, objectors may just have to just “have at it.”