Clinical Rotation Vaccine Exemptions

The Americans with Disabilities Act (ADA) requires that covered entities accommodate program participants who meet the legal requirements of this federal statute, assuming that they can do so without undue hardship. The ADA’s definition of “disability” is written very broadly. The purpose and intent of the ADA and the case law involving the ADA do not support the idea that a covered institution can limit the protection of the ADA to such narrow confines.

Vaccine exemptions are generally regulated by the Americans with Disabilities Act and any similar state or city law. The ADA may not apply to a private religious institution, but there are instances when the institution voluntarily adheres to it. Many private religious institutions are subject to Section 504 protections in absence of the ADA. Whether a state or city disability rights law applies depends on how the statute is written and whether it covers the facts and circumstances of any one case.

Sometimes, a healthcare provider will not write a vaccine exemption, even if they believe vaccination is unsafe for their patient, simply because they don’t know how or what conditions legally qualify. Siri & Glimstad attorneys often work with clients and physicians to develop legally sound language based on the client’s medical history and diagnosis. Notably, Siri & Glimstad does not recommend physicians.

Entities covered by the Americans with Disabilities Act must accept a robust application for a medical vaccine exemption. However, the institution can deny the request if it doesn’t meet the law’s requirements or if it can prove that providing the exemption poses an undue hardship. Most denials result from the insufficiency of the exemption request rather than the institution alleging undue hardship. Occasionally, institutions will attempt to pass off denials onto clinical sites, stating that their clinical contracts do not allow for exemptions of any kind. It is important to discuss with a licensed attorney to determine what your rights are in any particular case.

Regarding a vaccine exemption, an undue hardship usually means that the entity alleges that permitting an unvaccinated person at the educational facility poses a risk of harm to others. Siri & Glimstad attorneys have assisted many clinical rotation students in obtaining a medical exemption where the college and/or rotation site stated that no exemptions were permitted.

Regarding a vaccine exemption, an undue hardship usually means that the institution alleges that permitting an unvaccinated student on-site poses a risk of harm to others. However, the student will often have arguments to overcome this position. For example, if the vaccine or vaccines at issue don’t prevent transmission or infection, the arguments regarding undue hardship are not compelling. Siri & Glimstad’s managing partner, Aaron Siri, has several Substack articles regarding whether certain vaccines prevent infection or transmission of their targeted pathogen. It’s important to work with qualified legal counsel to determine any counterarguments you may have.

Public colleges are required to adhere to the U.S. Constitution. Recent cases have held that the First Amendment’s Free Exercise Clause requires that if a public institution offers a discretionary secular (medical) vaccine exemption, it must also provide an option for a religious exemption. This was clearly established in a Supreme Court case, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). In another case, Tandon v. Newsom, 141 S. Ct. 1294 (2021), the Supreme Court ruled that an institution undermines the neutrality and general applicability of a policy that doesn’t allow religious exemptions when it allows comparable secular activities. This means that if a public institution allows medical exemptions and other unvaccinated individuals into the program, but categorically prohibits religious exemptions for clinical rotation students is likely unconstitutional. These arguments may be used against public schools and universities, but may fail if they are used directly with clinical sites as clinical sites do not have any legal obligation to students. Notably, clinical sites may treat their own employees very differently than they treat students – including requiring different vaccines and offering exemptions to employees when they fail to offer those same protections to students. This does not create a constitutional issue with the clinical site as it is the school’s responsibility to provide a reasonable accommodation to the student, not a clinical site’s.  

While the U.S. Constitution doesn’t apply to private colleges, other arguments are available. For example, it may be fruitful to present some of the following arguments, depending on the facts, circumstances, and applicable state law, with regard to the institution’s vaccine mandate and/or denial of a religious exemption:

• Violation of the institution’s mission statement, policies, or procedures regarding discrimination;

• Violation of the institution’s accreditation requirements;

• Contrary to local, state, or national health guidance;

• Contrary to published science or otherwise unscientific, for example, mandates for vaccines that do not prevent transmission of the targeted pathogen (COVID-19, IPV, Tdap, etc.); or

Critically, many of these arguments depend on the student submitting a robust and legally sound religious exemption request. Absent submitting a legally sound exemption, the grounds for most of the arguments listed above fall away because the student failed to meet the legal requirements for an exemption.

Typically, the college will have a policy and procedure governing religious exemption. Public colleges and clinical sites are required to adhere to the U.S. Constitution regarding any religious exemption policies and procedures. Private institutions have a lot of leeway to set their policies regarding vaccination and exemptions. For example, at least one state appeals court has held that a private religious school does not have to provide a religious exemption to its vaccination requirement, even when a state statute provides the exemption.

When writing an exemption, it is essential to understand that the law regarding religious exemptions is complex and non-intuitive. Many people are denied an exemption simply because they used common sense and expected the employer, school, or clinical rotation site to do the same. Some of the basics regarding a religious exemption are summarized below.

Generally speaking, to qualify for a religious exemption to a vaccine mandate, the student must articulate a sincere religious belief that they hold, which prevents them from receiving the vaccine(s) at issue. Therefore, simply reciting statements such as, “I have sincere religious beliefs against vaccination” is generally insufficient.

• In most instances, institutions can question the sincerity or the religious nature of the beliefs.

• The terms “sincere” and “religious” are what the legal profession calls “terms of art,” meaning they don’t have the ordinary meaning that most people would ascribe to them. These terms are defined by caselaw.

• The student must clearly explain why their religious beliefs prevent vaccination. This can be an objection to vaccines generally, to each specific vaccine, to the components in vaccines, to the processes used to create vaccines, or all of the above. The objection should be universally held – for example, if the student objects to the Covid-19 vaccine based on the use of aborted fetal cell lines, he or she should not receive an MMR vaccine that is also manufactured using aborted fetal cell lines. Consistency is key. In addition, simply reciting religious beliefs is not sufficient.

• Whether the student qualifies for the religious exemption is not a theology question. It is a legal question and must meet legal structures. The student can have a deeply held belief, but if the student presents the beliefs in a way that violates the “rules” for what is considered a valid religious exemption, it may get denied.

• Legal arguments or citations should never appear in a statement describing religious beliefs or in an application for religious accommodation.

At least one state appeals court has held that a private religious school does not have to provide a religious exemption to its vaccination requirement, even when a state statute provides the exemption.

In addition, private religious or ecclesiastical school are exempt from offering religious exemptions under the Ecclesiastical Abstention Doctrine. Courts have held that private religious schools have the authority to create their own policies regarding religious issues, and whether or not to offer a religious exemption is one of those issues. Notably, private religious institutions are also not beholden to the Americans with Disabilities Act, though they may be beholden to Section 504. It’s important to discuss this issue with your attorney to discover your best chances of success.