Is it Discrimination?

And he's filed a lawsuit on behalf of everyone subject to the Executive Order to prove it.  Here's an interesting argument in the filing.

"The Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 

Defendants, as state actors, imposed a burden on Plaintiffs’ exercise of religion.  The burden imposed on Plaintiffs’ exercise of religious is substantial, in that the Vaccine Mandates inter alia effect Plaintiffs ability to: maintain employment, seek future employment, abide by the principles, beliefs, morals, values, or practices of their religion, ostracizes plaintiffs in society, discriminates against plaintiff because of their religion, and causes other economic and non-pecuniary injuries including the loss of promotional opportunity, benefits and insurance, and causes Plaintiffs to endure mental anguish and emotional distress concerning their ability to abide by their faith and further mental anguish and emotional distress related to fear of physical or mental injury that has been and continues to be directly and proximately caused by the vaccination."

Because Federal Contractors are acting as an arm of the Federal Government in enforcing an Executive Order, then they must adhere to Federal Law.  You can read the filing here.  Good Stuff.

Interested in the Religious Freedom Restoration Act?  Read it HERE.

The EEOC defines Discrimination as:

• Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. 
• The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. 

If you have been granted a Religious Exemption and are being required to do testing, masking or additional procedures or processes that people who have not received an exemption, it's probably discrimination.  That is another "term or condition of employment" if you will be terminated or denied otherwise. And you have a right to notify your employer and ask that the discrimination end.  

The CDC guidelines that suggest additional requirements to unvaccinated employees don't take into account the Religious Exemption.  Unless you've been subjected to regular testing before the mandate, testing may be a violation of your Constitutional Rights.

UPDATE:  A member filed a civil rights complaint with their state Attorney General's office.  He explained that only the unvaccinated were masked initially (medical discrimination) and that only those with religious exemptions are being required to do weekly testing (religious discrimination).  He also detailed that those who chose not to list their vaccination status in a voluntary disclosure were listed as unvaccinated to their managers.  The report was taken and is now being investigated.

If your sincerely held belief included issues with the toxicity of the COVID-19 shot, it's affect on your body and health, or if you included in your accommodation request to not be tested because of the carcinogenic chemicals, then you could push back to your HR dept and ask for testing to be eliminated based on your sincerely held belief.  Doing so and documenting their response can be used in a complaint if necessary.

"I believe that the accommodation of (masking/testing/etc.) you propose is discriminatory in nature.  Because of my religious beliefs I'm being asked to submit to an additional requirement as a condition of employment, which is the definition of discrimination.  In addition ,it is clear from all the current data that vaccinated persons get COVID-19 and transmit COVID-19 at about the same or greater rates than the unvaccinated.  I'm sure your own tracking of cases bear that up. So the unvaccinated pose no greater threat to the community than the vaccinated, and possibly less because many of us have actually had COVID-19 and have natural antibodies that are proving to be more robust.  So the only reason to require that I (mask/test/etc)  as opposed to a vaccinated person is because of my request for an accommodation.  I surely hope that this is not also retaliation because of my sincerely belief concerning the COVID-19 shot.
Therefore I ask that you revise your accommodations to not discriminate against me due to my religious beliefs."

And if denied, file a complaint.  We show you how HERE.

These questions are designed to be used in a complaint later.  Many HR dept are refusing to answer these reasonable questions. That could also be evidence of not having an interactive process for accommodations as required by law.  Remember, exhaust all administrative avenues.  One employee has documentation from HR to 'quit asking questions'

Questions that I would like addressed before I submit to testing as an accommodation are:

• What kind of testing will be required, can you please elaborate on what kind of tests, including the brand and specific type will be available?
• What are the health risks associated with testing? I've read about 2nd degree burns and chronic sinus issues associated with testing.  Please provide the study the company used to assess the risk as required by OSHA.
• What are the risk of injury at the time of testing? Please provide the study the company used to assess the risk as required by OSHA.
• What are the long term effects of weekly testing? Please proved the stud the company used to assess the risk as required by OSHA.
• If I am harmed by the required testing, will the company be liable for my injury and treatment?  Is this a Worker's Comp issue?
• How long will testing be required? If this an indefinite requirement, what are the end conditions to stop testing weekly and wearing a mask?
• Will the vaccinated co-workers also be required to test since all the data show that they get, transmit, are hospitalized and die from COVID-19 also?
• If my unvaccinated co-workers aren't required to be tested then how does the Company protect me from them?  One study showed the viral load they care to be more than twice the unvaccinated. What is the company doing to track and mitigate risk from those with the vaccine who are falling ill and transmitting the disease?
• Are only people with religious or medical exemptions being required to test?
• Why am I required to test if I am protecting others by wearing a mask and social distancing?
• What policy covers if I receive a positive test while having no symptoms, a likely false positive?  
• Will I be  quarantined with a positive test? And if so, for how long?  If I'm not allowed to work due to a positive test, does the company provide paid time off?  Would I be required to use my PTO even if I'm not sick? 
• What happens if I am out of PTO, and receive a positive test?
• If I'm an essential on-site worker, can I request an off-site position for the duration of the testing requirement?
• Are there any 3rd parties involved with testing/results/my medical information? If so, who? And what precautions are being taken for privacy?
• If I file a discrimination complaint with the state Attorney General's office, The Office of Federal Contractor Compliance Protections or the EEOC will I still be required to submit to discriminatory testing to remain employed, or will I be exempt from testing (discrimination) while the complaint is investigated?  (Obviously, this is an offensive tactic.)
  And if HR won't cooperate, file a complaint.  We show you how HERE. 

In general, you must exhaust administrative avenues to resolve an issue before proceeding.  Be sure you get a definitive 'NO" from your company in writing before filing a complaint as you'll need that as evidence.

Possible steps might include:

• Documenting a response from HR that refuses to consider your request.
• Filing an ethics complaint with your company (look at your employee handbook)
• Documenting company FAQ, preserving your denial letter, any other official company announcements that show the Company is not considering your religious beliefs.

These steps need to be followed or any legal action could be stopped because you did not exhaust all available remedies.. Again, this is not legal advice, it is an attempt to help you understand your responsibilities in the eyes of the Courts. 

HR approved this response to the testing accommodation from one employee at Raytheon.  You could use as a template to put the company on notice that you know your rights and are only accepting under duress.

I am being discriminated against based on my perceived disability, which has created a hostile workplace environment. As a result of this discrimination and harassment, I have suffered ( list the adverse effects the mandate of vaccination, testing, masking etc. has caused such as: mental or emotional distress, anxiety, depression, increased stress, sleeplessness, and stress-induced health issues, co-workers making derogatory remarks, being denied workplace assignments etc.)

(Company) is currently engaged in perceived disability discrimination by materially treating unvaccinated employees worse than employees who admit to being vaccinated. (Company) perceives those individuals who are unvaccinated are suffering from a disability because they either will contract or currently have COVID-19, a communicable disease. Adverse actions include unjustified work restrictions that are not placed on the vaccinated employees and threatened employment actions such as termination for the unvaccinated. These adverse actions are done despite information demonstrating vaccinated individuals can still contract, carry, and transmit COVID-19, yet the unvaccinated are being materially discriminated against.  (Company) is currently tracking the number of vaccinated individuals who get COVID-19, so you know that to be true.  Yet still (Company) is forcing the unvaccinated to submit to weekly testing regardless of whether the unvaccinated individual is experiencing symptoms as a condition of (Company) approval of a Religious/Medical Exemption from the COVID-19 shot.  Further, these unvaccinated individuals must submit to this weekly testing for an unspecified amount of time.  

I am being treated materially worse than my vaccinated coworkers. It is being assumed by my employer, (Company), that I currently have or will contract COVID-19, a communicable disease. Case law has established that communicable diseases are protected disabilities. [School Bd. Of Nassau County, Fla. V. Arline, 480 U.S. 273, 289 (1987)]. I am materially being discriminated against for a perceived disability by being treated differently than my vaccinated coworkers.

Longstanding (Company) policy allows employees to take sick leave if exposed to a communicable disease that threatens others. I have been employed conducting my duties safely throughout the entire COVID-19 pandemic. Objective evidence shows that my individual duration of risk, likelihood of potential harm, and the imminence of potential harm are extremely low. Objective evidence shows that I conduct my duties to (Company) high standard regardless of my vaccination status and without weekly testing.  (In addition I have robust antibodies greater than those who are vaccinated because I had COVID-19 and have recovered so I actually pose virtually no risk to my co-workers or myself.)

 I,_________, under duress and coercion, consent to weekly testing at the company’s expense. I consent to charging ALL my time and costs affiliated with COVID-19 testing, waiting for the test results, reporting test results, or anything attributed to COVID-19 to my employer. I consent to maintaining social distancing and face mask measures.

Your employer is likely following these guidelines.  BUT if you have an exemption 3 attorneys we spoke to say it's discriminatory.  (See Below)

To reduce the risk of becoming infected with SARS-CoV-2 (the virus that causes COVID-19) including the Delta variant, and potentially spreading it to others, CDC recommends that fully vaccinated people:

• Wear a mask indoors in public if they are in an area of substantial or high transmission.
  • Fully vaccinated people might choose to mask regardless of the level of community transmission, particularly if they or someone in their household is immunocompromised or at increased risk for severe disease, or if someone in their household is unvaccinated.
• Get tested if experiencing COVID-19 symptoms.
• Get tested 5-7 days after close contact with someone with suspected or confirmed COVID-19.
• Wear a mask indoors in public for 14 days after exposure or until a negative test result.
• Isolate if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.
• Follow any applicable federal, state, local, tribal, or territorial laws, rules, and regulations.

From their FAQ regarding masking:  After you are fully vaccinated for COVID-19, take these steps to protect yourself and others:

• In general, you do not need to wear a mask in outdoor settings.
• If you are in an area with high numbers of COVID-19 cases, consider wearing a mask in crowded outdoor settings and when you are in close contact with others who are not fully vaccinated.
• If you have a condition or taking medications that weaken your immune system, you may not be fully protected even if you are fully vaccinated. You should continue to take all precautions recommended for unvaccinated people, including wearing a well-fitted mask, until advised otherwise by their healthcare provider.
• If you are fully vaccinated, to maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission.

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html