Healthcare and healthcare-related employers have not just been at the heart of the fight against the COVID-19 pandemic, they have also recently been on the battleground in the fight over mandatory vaccination. Multiple states and locales have enacted some form of a mandatory COVID-19 vaccination requirement. Many of these vaccination mandates are directed at healthcare workers and state employees. These mandates vary by locality as to where the mandates apply, to whom the mandates apply and in what contexts, and when exemptions apply. And, of course, the federal mandates announced in September 2021 loom in the background.

Some of the recent COVID-19 vaccination mandates allow for weekly testing as an accommodation for anyone who does not want to be vaccinated, regardless of whether an individual qualifies for an exemption. Other mandates allow only for a testing alternative as an accommodation for individuals who cannot be vaccinated due to medical conditions or sincerely held religious beliefs. Two states, New York and Rhode Island, have mandates that recognize accommodations for medical conditions, but they are silent as to accommodations for sincerely held religious beliefs, leaving employers with a lack of clarity around how to comply with the mandates while being mindful of employers’ duty to accommodate under Title VII of the Civil Rights Act of 1964 and state laws.

Complying with all of these mandates, in particular for healthcare and healthcare-related employers, is already confusing, but a recent federal court ruling in Rhode Island provided a little guidance for employers attempting to interpret their duties under the mandates.

Rhode Island’s Regulation Requiring COVID-19 Vaccination for Healthcare Workers

On August 17, 2021, Rhode Island adopted Emergency Regulation 216 RICR 20-15-8. The regulation provides, among other things, the following:

• By October 1, 2021, “subject to a medical exemption,” both healthcare workers and providers are required to be fully vaccinated and healthcare facilities are required to deny entry to any healthcare worker or provider who is not.

• Those healthcare workers “subject to a medical exemption” must be tested twice weekly for COVID-19 and “wear a procedure mask or higher-grade mask” while working.

Given that the regulation failed to mention anything about religious exemptions and only listed medical exemptions, many believed that the regulation simply ruled out religious exemptions. This left healthcare and healthcare-affiliated employers with an untenable quandary: follow the mandate and risk Title VII lawsuits, or allow for religious accommodations and risk the penalties associated with violating the regulation.

It is of note, however, that while the regulation is silent about religious exemptions, it has two important features: (1) the regulation announces up front that it is meant to be “in addition to compl[iance] with state and federal laws or regulations” and (2) while the drafters of the regulation addressed medical exemptions, they did not state that medical was the only type of exemption, leaving the possibility of unmentioned other exemptions, such as religious exemptions. This is the precise part of the regulation that the U.S. District Court for the District of Rhode Island relied upon when it recently denied plaintiffs’ motion for a temporary restraining order.

The Lawsuit—Dr. T. v. McKee

A class of healthcare workers recently brought a lawsuit, Dr. T. v. McKee, against the governor and the director of the Rhode Island Department of Health. In the lawsuit, the plaintiffs alleged, among other things, that by failing to provide for a religious exemption, the mandate had operated to discriminate against them based on their religious beliefs and in conflict with Title VII’s requirement for religious accommodation in employment. The plaintiffs moved for a temporary restraining order and/or a preliminary injunction enjoining Rhode Island from enforcing the state vaccine mandate against any entity allowing religious accommodations, or anyone who would otherwise request and qualify for a religious accommodation.

In its September 30, 2021, order, after a hearing, the court refused to rule on the motion for a preliminary injunction and denied the plaintiffs’ motion for a temporary restraining order. Generally, the court denied the motion since plaintiffs could not meet their central burden of showing a likelihood of success on the merits.

The court’s specific holdings, while still preliminary, are instructive. The court noted that for  more than 100 years, vaccination mandates, such as Rhode Island’s, have been upheld as precisely the types of generally applicable laws that are constitutionally valid expressions of a state’s police power, specifically not in violation of the right to free exercise of religion under the First Amendment to the United States Constitution or the equal protection clause under the Fourteenth Amendment.

Recognizing that the regulation was silent as to religious accommodation, the court stated, “Nothing in the language [of the mandate] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions.” (Emphasis added.) Pointing out that a religious accommodation “does not have to be the best accommodation possible” (emphasis added) under Title VII, the court went further and reasoned that even if the mandate somehow made it harder to provide a religious accommodation, that alone would not make it a “‘physical impossibility’” to accommodate and so the mandate was not in conflict with Title VII.

The court reasoned that even if the regulation made religious accommodation more difficult than a medical accommodation, that fact by itself did not prove that reasonable accommodation for sincerely held religious beliefs was “physically impossible,” as would be required to show preemption. The court pointed out that the regulation does not require a termination of employment. Instead, under the Rhode Island regulation, healthcare and healthcare-affiliated employers are required only to deny entry to their facilities, and only to unvaccinated individuals who come into contact with patients or infectious agents. The court reasoned that this left open the possibility for employers to provide reasonable accommodations to employees with religious objections to COVID-19 vaccinations.

What Does This All Mean for Healthcare Employers?

The result in Rhode Island is only a district court ruling on a motion for a temporary restraining order. The plaintiffs in the case can still move for a preliminary injunction after putting more evidence in the record. Notwithstanding that, healthcare and healthcare affiliated–employers can take away the following caveats when confronted with a difficult-to-interpret mandate:

• Even where a mandate looks as if it does not permit accommodations, employers may want to look again at the mandate’s definitions and provisions—oftentimes they, like the Rhode Island regulation, leave open the possibility that unspecified accommodations are available.

• Employers may want to be on the lookout for clauses in mandates stating that the mandates are meant to be in compliance with state and federal law. Such clauses may reasonably be deemed to incorporate all of Title VII’s requirements.

• Accommodations for religious beliefs need not be the same as accommodations for medical conditions. Employers have a less demanding burden to show undue hardship for a religious accommodation than for a medical accommodation.

Unfortunately, many mandates were written quickly and are confusing, which can make it hard for employers to develop compliant policies. The good news is that developing case law is beginning to address how to interpret state and local mandates.