If you are an institution of higher education (IHE) requiring the COVID-19 vaccine for students returning to campus in the fall, you have the important task of abiding by an interactive process in handling the imminent accommodation requests from students who cannot receive the vaccine. Currently, there are two legally recognized exceptions from mandatory vaccines for students: disability-related reasons or a sincerely held religious belief. While there may be a healthy balance of exemption requests premised on both of these issues, this guide specifically focuses on some questions that are frequently asked by IHEs that are fielding requests based on a sincerely held religious belief, observance, or practice. On the federal level, Title VI of the Civil Rights Act of 1964 protects students of any religion from discrimination based on a student's actual or perceived shared ancestry, ethnic characteristics, citizenship, or residency in a country with a distinct religion. Similarly, Title IV of the Civil Rights Act of 1964 prohibits discrimination based on religion in federally funded educational institutions. Note that some states have different and/or more expansive laws for this particular exemption.

1. What should our mandatory vaccination policy say with regard to the religious exemption?

The policy distributed to the student body should reference the religious exemption and how it provides an exception to the mandatory vaccination policy, and include any relevant definitions. Specifically, the policy can explain that a sincerely held religious belief is a belief that can be either theistic or a moral and/or ethical belief as to what is right and wrong, but both are acceptable if they are sincerely held.

The policy should also state the IHE's process for handling religious exception requests and plainly explain that the process as one that is an interaction between the student and the school. The results of this process will be considered, analyzed, and determined on a case-by-case basis by a reviewer. The policy should make it abundantly clear that only those who qualify after a review of the request will be granted an exemption. Importantly, the policy should indicate that those who submit false documentation or knowingly submit false information in pursuit of this exemption are in violation of the school code of conduct, or other relevant policy, and will be subject to discipline.

2. How should students submit their requests?

Students should be provided with a form on which to confirm their request in writing and provide additional details as necessary. This form should be kept by the IHE, in the students' records. If students make an oral request or mention to an employee of the IHE that they cannot get the vaccine, they should be directed to fill out a form and confirm their request. The form should request information relating to the request and include a certification from the student that the statements, documents, and information provided to the IHE are true and accurate. The form should also confirm that the student understands that upon approval of the exemption, in the event the student reports to campus, the student will have to comply with predetermined protocols for unvaccinated individuals, which can include frequent COVID-19 testing at the IHE's discretion and/or proof of a negative test.

3. Can we request other supporting documents?

IHEs can request documents to be used in the review process to further their assessment of the student's sincerely held religious belief. Types of documents that an IHE can request include:

  • Past documentation of medical and immunization history, which tends to show whether they acted in a manner that is consistent or inconsistent with their religious belief
  • Statements and explanations from the student that discuss the nature and tenets of their asserted beliefs and information about when, where, and how they follow the practice or belief
  • Written religious materials describing the religious belief or practice
  • Written statements or other documents from third parties, such as religious leaders, practitioners, or others the student has discussed their beliefs with or who have observed the student's past adherence

4. Who should make the ultimate determination about whether to grant the exemption?

The question of whether an individual's belief is acceptable and sincerely held is an issue of an individual's credibility. Accordingly, the assessment of each student's request for an exemption will have to be reviewed on a case-by-case basis. Consistency in the decision-making process is crucial to avoid claims of bias and discrimination. Evaluation by a single reviewer who is well versed in Title IV and Title VI of the Civil Rights Act of 1964, enforced by the U.S. Department of Education's Office for Civil Rights (OCR) and the Department of Justice, and applicable state civil rights laws is the most effective way to ensure that the assessment is done properly and without any indicia of discrimination. Larger IHEs may not find this feasible, given the number of exemption requests they are bound to receive; however, if an IHE intends to use a group of decision-makers, the group should be limited to a few people, and the IHE should request this information from students well in advance of the upcoming semester to ensure that the decisions are made in a timely manner.

5. What should the reviewer(s) consider?

A reviewer should have two questions in mind: Is this an acceptable religion? And is this religious belief sincerely held? When considering whether the individual's belief is an acceptable religion, the reviewer should be aware that religion, according to the law and policy, includes not only traditional faiths but also faiths that are new, uncommon, or informal, or have a small number of practitioners, and some that may seem illogical or even unreasonable to others. Religious beliefs also do not have to be theistic but can be non-theistic, strongly held moral or ethical beliefs. If the belief held by a student is based on social, political, or economic philosophies, as well as mere personal preferences, these are not considered religious beliefs under federal law.

The next consideration is whether this faith is sincerely held by the student. Some items to consider in making this determination are whether the students have received prior vaccinations or if they have previously been exempted; how recently the student has subscribed to this faith; whether the student's past practices deviated from the followed tenets of their belief; and if there is another reason to believe the request is not being sought for religious reasons. The reviewer(s) should take a holistic approach, as not one of these considerations on its own is dispositive. The collection of documents listed above should be used to help assess the student's sincerity.

6. Is there anything else we should consider?

Because the current COVID-19 vaccinations are approved through the emergency authorization only, there may be questions as to how IHEs should implement mandatory COVID-19 vaccination and exceptions for its students. However, because of recent guidance from the Centers for Disease Control and Prevention, the Department of Education, and the EEOC, IHEs should be on firm legal ground in mandating the vaccine, as long as they process requests for exemptions in the same manner in which they review exception requests for the meningitis, measles, and hepatitis vaccines. In furtherance of this, IHEs should follow these abiding principles:

  • Presume a religious belief to be sincerely held, then be selective and cautious when requesting further verification and documentation. Avoid a fishing expedition, to reduce the chances of claims of discrimination, harassment, or intimidation
  • Be cognizant that religious beliefs are not static and are susceptible to change over the course of a person's life
  • Remember that the fact that an individual is not a frequent observer of their faith or had not previously made their faith public does not necessarily limit its sincerity
  • Note that excluding a student from in-person classes may lead to litigation over whether the student is being denied the benefit of the same educational opportunities as those who are vaccinated. While vaccination status is not yet a protected category, there are other protected categories that may be inadvertently implicated (e.g., disability status, religion, race)

IHEs should review their current protocols for processing religious exceptions for COVID-19 vaccinations and update them as necessary. IHEs with any questions about their protocols regarding the religious exception to mandatory vaccinations, including the COVID-19 vaccination, should feel free to contact the authors of this article or any other member of Venable's Labor and Employment Group.