Chris Wiest, Attorney at Law, PLLC

25 Town Center Blvd, STE 104

Crestview Hills, KY 41017
(513)257-1895 (cellular)
chris@cwiestlaw.com
*admitted in Kentucky and Ohio

September 5, 2021

UPDATED CLIENT ALERT: Employer (and colleges) Vaccine Mandates

With an increasing incidence of employers (and colleges) in Kentucky mandating

vaccination for COVID-19, we have received an increasing number of inquiries about the
legality of such mandates. This guidance sets forth the legal issues surrounding such mandates.
At the outset, certain of this advice is specific to COVID-19 vaccines, rather than all vaccine
mandates. And this general alert is not meant to replace case and fact specific guidance for your
specific situation. With the recent approval of the COVID-19 vaccine by the FDA, the EUA
exemption has gone away (except with respect to 12- to 15-year-olds). 1

Medical exemptions

Medical exemptions, which require a doctor’s note, appear to be the rare exception, rather
than the rule. However, if you are able to obtain a doctor’s note, then the ADA will apply. The
Americans with Disabilities Act is likely also at play for medical exemptions. A disability is
defined as being “a physical or mental impairment that substantially limits one or more major
life activities of such individual.” 42 USC 12102(1)(A). Like other provisions of federal law,
there is a 15-employee limit – so small employers are not subject to the ADA. 42 USC
12111(5). An employer may not discriminate on the basis of a disability. 42 USC 12112.

The ADA applies not only in employment, but also in places of public accommodation,
which would include obtaining medical care in hospitals, and to schools (public and private). 42
U.S.C. 12181–89. Again, this requires a medical diagnosis of a disability, and one that would
make it so that you are unable to obtain the vaccine. Our experience over the last few months is
that most physicians are unwilling to write these notes, but if you are able to obtain such a note,
the medical exemption is the easiest and most likely sure-fire way to go.

Religious exemptions.

Federal law applies to employees affecting commerce, which are those that have 15 or
more employees. 42 USC 2000e(b). That same statute protects religion, which is extended to

1
We understand that certain people have taken positions that the FDA approval was for
Comirnaty (which it was) and the EUA continues for existing supplies for adults. The
formulation is the exact same formulation as the Pfizer vaccine that has been available under the
EUA since last December. The EUA will continue for some period of time for those aged 12 to
15. Comirnaty has been purchased by the United States government for distribution and is
available in the United States. But even if it were not, generally speaking, we are not aware of
any employees taking the position with their employers that they will obtain the Pfizer vaccine
with the Comirnaty label, but have been unable to do so, yet those would need to be the facts to
have standing to raise this particular claim in a court of law.
“all aspects of religious observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to an employee’s or prospective
employee’s religious observance or practice without undue hardship on the conduct of the
employer’s business.” 42 USC 2000e(j). 42 USC 2000e-2(a) makes it unlawful for an employer
to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”

The same freedoms apply to places of public accommodation, which include schools. 42
U.S. Code § 2000a.

We have seen, in recent weeks, issues with denials of religious accommodations, largely
because people have been using “form” exemption requests, or in some cases have failed to fill
out employer forms. The use of an employer form is fine, as long as it contains language such as
“I understand … [that COVID is dangerous; that my choice not to be vaccinated might harm
others; or other statements],” rather than “I agree to waive my rights under federal or state law,”
which should never been signed. Waivers of rights should never be signed, and probably
constitutes a per se violation of the law, namely retaliation for seeking to assert protected rights.
Under no circumstances should you resign.

We have previously put out an example exemption letter, but are increasingly finding that
people are merely signing these letters rather than explaining why they have sincerely held
beliefs or personalizing them. And, if they have previously obtained vaccines, they need to
explain what has changed: a common explanation is that the person did not know about vaccines
containing or being derived, produced, or tested with aborted fetal cells.

In both the ADA and under Title VII for religious exemptions, it is critical to invoke
these rights early in the process, and to document them appropriately. It is also important to note
that an employer (or college) is generally required to provide a reasonable accommodation,
which may not be a blanket exemption without “strings,” and could be things like telework if it is
available, or may include COVID-19 testing or even mask mandates (unless those are also
covered by a religious or medical objection to their usage which would trigger the same
balancing analysis). A large corporation may be required to afford greater accommodations than
a small one, which is less able to do so. And questions will arise about the disruption that any
accommodation will cause to the employer.

Again, obtaining legal advice early is important.

State law can, but currently does not, provide additional measures.

Legislative efforts to provide employee protections failed to pass in the 2021 Kentucky
General Assembly. But there are bills that are being proposed to afford greater protections in the
2022 session. Whether there is support for any such measures likely to pass remains to be seen.

If you have further questions about this alert, please email us at: chris@cwiestlaw.com

2
 MEMORANDUM
TO: SCHOOL ADMINISTRATOR
FROM: ___________________________ (student)
DATE: ___________________________
RE: VACCINATION EXEMPTION REQUEST (Religious)
To Whom It May Concern:
Please allow this memorandum to serve as my request for a religious exemption from
your COVID-19 vaccination requirement. 1
Request for religious exemption
First, this request is one to reasonably accommodate my religious beliefs. Title VII (42
U.S.C. 2000a) requires places of public accommodation (including public and private colleges)
to offer reasonable accommodations for religious beliefs. Having studied the COVID-19
vaccines, I have a sincerely held religious belief against using any product whether, in research
or development, or production, that utilized aborted fetal tissue. Pfizer and Moderna performed
confirmation tests (to ensure the vaccines work) using fetal cell lines. Both companies used the
fetal cell line HEK 293 in the confirmation phase to ensure the vaccines work. All HEK 293 cells
are descended from tissue taken from a 1973 elective abortion that took place in the Netherlands.
Johnson & Johnson uses fetal cell lines in vaccine development, confirmation and production. To
make their virus vector vaccine, Johnson & Johnson infects PER.C6 fetal cell line cells with
adenovirus. All PER.C6 cells used to manufacture the Johnson & Johnson vaccine are descended
from tissue taken from a 1985 elective abortion that also took place in the Netherlands.
Thus, the current vaccines on the market, if used by me, substantially burdens my
sincerely held religious beliefs. See, also, Exodus 20:13; Psalm 139:13-16; Jeremiah 1:5; Job
31:15; 1 Thessalonians 5:22.
I have held these beliefs for some time [personalize the request here concerning your
religious beliefs, how long you have practiced it, and why you believe the vaccine would burden
it; you should avoid any sort of allegations about the vaccines and alteration of DNA, causing
infertility, and other issues that the government and vaccine manufacturers have undertaken to
disprove – even if all of those things are true, they can deny your request on the basis that you
have the facts wrong, and then, if you go to court, the attorneys are forced to prove those things
are in fact true, which is NOT where the attorney wants to be]. Commented [CW1]: We will NOT take any case that
involves anyone making these sorts of claims in the
exemption request, because we are then battling uphill for
the entire litigation. You should AVOID any claim that
someone could label as a conspiracy claim – even if you
believe it to be so, and even if it might be true. Stick to the
1
As an aside, current medical research reveals that COVID-19 vaccines are not preventing facts that no one will or can dispute: you have a religious
community spread with respect to the currently prevalent Delta Variant, but are, instead, belief, explain what that belief is, and explain that the
vaccine will burden it.
symptom suppressants. https://www.nature.com/articles/d41586-021-02187-1 (last visited
8/14/2021).
 I previously have had COVID-19, and all available evidence suggests robust natural
immunity from having had it, that may, some research reveals, be more robust and longer lasting
than any vaccines. 2 Thus, I pose no additional risk to my fellow students or college employees,
and should, as a consequence, be accommodated for my request for an exemption. Paperwork
documenting my previous infection is attached. Commented [CW2]: This language and footnotes to it
should ONLY be used if you have previously had COVID-19
I offer, as an accommodation, to comply with requirements related to health and safety, and recovered.
including wearing PPE if requested, undertaking sanitization and other procedures if requested,
and to report if I feel ill.

Sincerely,

2
https://onlinelibrary.wiley.com/doi/10.1111/joim.13372 (last visited 8/14/2021);
https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2021.26.5.2100092 (last
visited 8/14/2021); https://www.nejm.org/doi/10.1056/NEJMoa2034545 (last visited 8/14/2021).
 MEMORANDUM
TO: EMPLOYER, HR DEPARTMENT
FROM: ___________________________ (employee)
DATE: ___________________________
RE: VACCINATION EXEMPTION REQUEST (Religious)
To Whom It May Concern:
Please allow this memorandum to serve as my request for a religious and medical
exemption from your COVID-19 vaccination requirement.1
Request for religious exemption
First, this request is one to reasonably accommodate my religious beliefs. Title VII (42
U.S.C. 2000e) requires employers to offer reasonable accommodations for religious beliefs.
Having studied the COVID-19 vaccines, I have a sincerely held religious belief against using any
product whether, in research or development, or production, that utilized aborted fetal tissue.
Pfizer and Moderna performed confirmation tests (to ensure the vaccines work) using fetal cell
lines. Both companies used the fetal cell line HEK 293 in the confirmation phase to ensure the
vaccines work. All HEK 293 cells are descended from tissue taken from a 1973 elective abortion
that took place in the Netherlands. Johnson & Johnson uses fetal cell lines in vaccine
development, confirmation and production. To make their virus vector vaccine, Johnson &
Johnson infects PER.C6 fetal cell line cells with adenovirus. All PER.C6 cells used to
manufacture the Johnson & Johnson vaccine are descended from tissue taken from a 1985
elective abortion that also took place in the Netherlands.
Thus, the current vaccines on the market, if used by me, substantially burdens my
sincerely held religious beliefs. See, also, Exodus 20:13; Psalm 139:13-16; Jeremiah 1:5; Job
31:15; 1 Thessalonians 5:22.
I have held these beliefs for some time [personalize the request here concerning your
religious beliefs, how long you have practiced it, and why you believe the vaccine would burden
it; you should avoid any sort of allegations about the vaccines and alteration of DNA, causing
fertility, and other issues that the government and vaccine manufacturers have undertaken to
disprove – even if all of those things are true, they can deny your request on the basis that you
have the facts wrong, and then, if you go to court, the attorneys are forced to prove those things
are in fact true, which is NOT where the attorney wants to be]. Commented [CW1]: We will NOT take any case that
involves anyone making these claims in the exemption
request, because we are then battling uphill for the entire
litigation. You should avoid any claim that someone could
label as a conspiracy claim – even if you believe it to be so,
and even if it might be true. Stick to the facts that no one
1
As an aside, current medical research reveals that COVID-19 vaccines are not preventing will or can dispute: you have a religious belief, and the
community spread with respect to the currently prevalent Delta Variant, but are, instead, vaccine will burden it.
symptom suppressants. https://www.nature.com/articles/d41586-021-02187-1 (last visited
8/14/2021).
 I previously have had COVID-19, and all available evidence suggests robust natural
immunity from having had it, that may, some research reveals, be more robust and longer lasting
than any vaccines. 2 Thus, I pose no additional risk to my co-workers, and should, as a
consequence, be accommodated for my request for an exemption. Paperwork documenting my
previous infection is attached. Commented [CW2]: This language and footnotes to it
should ONLY be used if you have previously had COVID-19
I offer, as an accommodation, to comply with requirements related to health and safety, and recovered.
including wearing PPE if requested, undertaking sanitization and other procedures if requested,
and to report if I feel ill.

Sincerely,

2
https://onlinelibrary.wiley.com/doi/10.1111/joim.13372 (last visited 8/14/2021);
https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2021.26.5.2100092 (last
visited 8/14/2021); https://www.nejm.org/doi/10.1056/NEJMoa2034545 (last visited 8/14/2021).