Can Hospitals And Federal Contractors Really Deny Religious Exemptions To Employees?

Hospitals and federal contractors are now pushing the boundaries with the denial of religious exemptions.

Photo: Saint Thomas Midtown Hospital, Nashville ; Photo Credit: Mx Granger / Public Domain

By Gary Humble –

Most of us realize by now that as of March 2020, we have been in an all-out war in defending our Constitution and our way of life. To those that have not come to that realization, including many of our political figures, it is time to get a clue.

Things heated up this past week in Tennessee with the passage of an omnibus bill that while helping many Tennesseans with the issues of employer-mandated vaccines and mask requirements in schools, it left a gaping hole for the federal government to waltz right in and show the state who’s boss. And boy did they.

You get that the federal government had their eyes on us during the special session at the end of October, right? You understand that they were just waiting to see what our legislature would do, don’t you? They were looking to see if we would stand, or if we would fold. And if you have been following along, then you know that we folded. And within a mere matter of days, the feds pounced with requirements on federal contractors and a new interim final rule from CMS requiring the vaccination of all healthcare workers.

It is hard to ignore the timing of it all. I wonder what the feds would have done if they would have perceived that Tennessee might have a pair? What would have happened if we would have called their bluff. Well, we might have just saved not only Tennesseans but the entire country from these mandates that are now upon us. We flinched. And they took us down.

So, what do we do now?

With the General Assembly now out of session, the opportunity to do this the right way has now come and gone, at least until January when the next general session begins. Lawsuits have been filed, but one thing has been proven true over and over again in Tennessee, our courts are pretty much as hopeless as every other branch of our government. Does that mean we give up? Absolutely not. But it means that in the absence of relief given by the courts, we must take up the fight on our own.

How do we do that?

Well, one way is that we demand that businesses, agencies, and contractors follow the law. You are protected by the First Amendment and your right to the free exercise of your religious beliefs. Courts have upheld time and time again that this right should not be diminished or ignored. And that right to your conscience is then further secured from discrimination by the Civil Rights Act of 1964. 

Right now, many federal contractors are denying religious exemptions to vaccination requirements based on supposed contractual obligations imposed by the federal government. Hospitals and healthcare facilities are denying religious exemptions to vaccination requirements based on a new interim final rule imposed by CMS via Medicare and Medicaid compliance. 

Healthcare workers are especially under the gun right now with the CMS deadline for the first dose of the vaccine due by December 5th before being terminated by their employer. But do the new CMS guidelines require hospitals to refuse religious exemptions? No, they do not. Here is a direct quote from p.61569 of Vol. 86, No. 212 of the Federal Register in the first paragraph:

“In other words, employers following CDC guidelines and the new requirements in this IFC may also be required to provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.”

If you work for a hospital or medical facility refusing your religious exemption and claiming to be following the CMS guidelines by doing so, they are lying. In fact, according to the guidelines, if medical providers are refusing to accommodate employees for their religious beliefs, they are breaking the law and could be in jeopardy of being out of compliance with the federal CMS guidelines which they are claiming to follow.

It is time to put them on notice.

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Additionally, on October 7, 2021, the Sixth Circuit Court of Appeals issued a court order dealing with religious exemptions denied to student-athletes at Western Michigan University. The court upheld a restraining order on the university from enforcing its vaccine mandate without honoring religious exemptions. Here are a few highlights from the court:

“But “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,” also trigger scrutiny under the Free Exercise Clause.”

“Accordingly, a policy that forces a person to choose between observing her religious beliefs and receiving a generally available government benefit for which she is otherwise qualified burdens her free exercise rights.”

“the University’s failure to grant religious exemptions to plaintiffs burdened their free exercise rights. The University put plaintiffs to the choice: get vaccinated or stop fully participating in intercollegiate sports.”

“By conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the University burdened their free exercise rights.”

“The Free Exercise Clause, we reiterate, “protects against ‘indirect coercion or penalties on the free exercise of religion.”

“Accordingly, where a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so.”

“Proper application of the Constitution, moreover, serves the public interest, Coal. to Def. Affirmative Action, 473 F.3d at 252, as “it is always in the public interest to prevent the violation of a party’s constitutional rights,” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).”

While many seem to believe the lie that issues of public health trump all other rights, this court seems to hold the First Amendment secured right to the free exercise of religion supreme. And make note, the state of Tennessee is within the Sixth Circuit’s federal court jurisdiction. 

There is an argument to be made that while government entities may be bound to provide for religious exemptions to vaccines due to the First Amendment, that a private business is not held to the same standard. Many hospitals are private businesses and can therefore do whatever they want in an employment-at-will state like Tennessee, you say.

But here is the kicker. To remain in compliance with Medicare and Medicaid, hospitals are required to adhere to the federal CMS guidelines. Well, it just so happens that those very guidelines that are now mandating the jab, also require religious exemptions to be granted.

Similarly, for a federal contractor to remain in compliance with a federal contract, it would have to follow federal law. If a federal contract had a requirement for vaccination, it would have to also allow for religious exemptions per the First Amendment.

If you are a healthcare worker or you work for a federal contractor, this is not the time to just sit back and take it. This is your time to stand and demand that your employer follow the law.

Do not give up your rights!

About the Author: Gary Humble is the founder and executive director of Tennessee Stands, an organization working to secure liberty and hold elected officials accountable to the Constitution through legislation, litigation, and education. Follow Gary @garyhumble and visit www.tennesseestands.org.