Employees' Objections to Covid Vaccine Were Not Religious

In Foshee v. AstraZeneca Pharmaceuticals LP, (D MD, Oct. 17, 2023), a Maryland federal district court dismissed a Title VII religious discrimination claim by two employees who were denied a religious exemption from a company's Covid vaccine mandate, finding that their objections were not religious in nature. The court said in part:

Both Foshee and Pivar made similar assertions – that they are guided in their important decisions by God or the Holy Spirit, respectively, that they personally do not see the value in and are concerned about the risks associated with the COVID-19 vaccines, and that they have not felt God or the Holy Spirit calling them to disregard their consciences and get the vaccine....

Foshee’s position, that God gave him a conscience that tells him what to do, similarly amounts to a “blanket privilege.” The same conscience-based justification could be used to evade any job requirement that Foshee disagreed with. Pivar’s position that he listens to the guidance of the Holy Spirit which guides him in his difficult decisions is in the same vein....

Of course, harboring secular reasons alongside religious reasons does not automatically disqualify the religious beliefs, but in this circumstance, the reasons are inextricably intertwined in a way that dilutes the religious nature. For example, plaintiffs do not want to take the vaccines, therefore their consciences tell them not to do it, and they believe it is God’s will or in accord with the Holy Spirit that they follow their consciences. That reasoning is not subject to any principled limitation in its scope. Their beliefs thus confer the type of unverifiable “blanket privilege” that courts cannot permit to be couched as religious in nature.

1st Circuit Remands Covid Vaccine Religious Exemption Case

In Brox v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority, (1st Cir., Oct. 6, 2023), the U.S. 1st Circuit Court of Appeal affirmed in part and vacated in part a trial court's refusal to require that plaintiffs be given a religious exemption from a state agency's Covid vaccine mandate. The court said in part:

[T]he appellants argue that the Policy, as administered, provides medical exemptions that permit unvaccinated employees to work "in close contact with colleagues, despite the purported direct threat . . . [their] unvaccinated status poses to them" but not religious exemptions that would permit unvaccinated employees to do the same even though their unvaccinated status poses no greater threat. And, according to the appellants, the Policy, as administered, is therefore not generally applicable -- and thus is subject to strict scrutiny -- because it "prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way"....

The appellees do argue that the Policy is generally applicable -- and so not subject to strict scrutiny -- for reasons having to do with the differing statutory liability that the Authority would face in denying requests for exemption that are medically rather than religiously based. The appellees assert in that regard that an employer may show that an accommodation for religious practice would constitute an "undue hardship" under Title VII of the Civil Rights Act of 1964 ... more easily than an employer may show that an accommodation for a disability would constitute an undue hardship under the Americans with Disabilities Act.... 

But even if we were to accept the appellees' contention about the greater leeway that an employer has under Title VII,.., the appellees do not develop any argument as to why we must conclude that, as a matter of law, the greater federal statutory liability that an employer faces for denying a medical exemption from a COVID-19 vaccine mandate than for denying a religious exemption from one suffices in and of itself to show that, for free exercise purposes, the former exemption may be granted and the latter exemption may be denied to employees who pose comparable risks of spreading the virus without thereby rendering the mandate not generally applicable and so subject to strict scrutiny....

We thus do not see how we may rely on this ground to affirm the District Court's "likelihood of success" ruling as to the appellants' free exercise claim....

Thus, we vacate the District Court's ruling with respect to its denial of the requested injunctive relief on the appellants' free exercise claim. We leave it to the parties and to the District Court on remand, therefore, to consider the appellants' request for that relief under the applicable legal framework that we have set forth....

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit.  A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were  dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims.  The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.

EEOC Sues Over Refusal of Religious Exemption from Vaccine Mandate For Remote-Working Emloyee

The EEOC announced yesterday that it has filed suit against the healthcare provider United Healthcare Services for refusing to grant a religious exemption from the company's Covid vaccine mandate to an employee whose duties were performed entirely remotely. The EEOC said in part:

“Neither healthcare providers nor COVID-19 vaccination requirements are excepted from Title VII’s protections against religious discrimination.”

EEOC Sues Over Refusal of Religious Accommodation from Vaccine Mandate

The EEOC announced yesterday that it has filed a Title VII suit against Arkansas-based Hank’s Furniture, Inc. for refusing to grant an employee a religious exemption from the company's Covid vaccine mandate. According to the EEOC:

When the Pensacola assistant store manager requested an accommodation exempting her from the requirement due to her Christian beliefs, her store manager and immediate supervisor informed her that the company would strip her of her management position if she refused to comply with the policy, no matter the reason. Despite her verbal and written requests for a religious accommodation, which Hank’s Furniture could have honored without undue hardship, the EEOC says, the company denied her requests and terminated her employment.

Court OK's Denial of Unemployment Benefits for Religious Objector to Covid Vaccine Mandate

In In re Parks v. Commissioner of Labor, (NY App., Aug. 31, 2023), a New York state appellate court affirmed the decision of the state Unemployment Insurance Appeal Bord denying unemployment compensation to a medical center security guard who was fired for refusing to comply with a Covid vaccine mandate. The court said in part:

Although claimant refused to comply with the mandate for personal reasons that he characterized as based upon his religious beliefs, the state mandate did not authorize a religious exemption. Contrary to claimant's contention that the vaccine mandate violates his First Amendment religious and other constitutional rights, religious beliefs do not excuse compliance with a valid, religion-neutral law of general applicability that prohibits conduct that the state is free to regulate, as the Board recognized.... When employment is terminated as a consequence of the failure to comply with such a law, including noncompliance with a religious motivation, the First Amendment does not prohibit the denial of unemployment insurance benefits based upon that noncompliance where, as here, the mandate has a rational public-health basis and is justified by a compelling government interest....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Title VII Claim for Denying Religious Exemption from Vaccine Mandate Moves Ahead

In MacDonald v. Oregon Health & Science University, (D OR, Aug, 28, 2023), an Oregon federal district court refused to dismiss a Title VII claim by a former nurse in a hospital's Mother and Baby Unit who was denied a religious exemption from the hospital's Covid vaccine mandate. The hospital argued that because plaintiff's job duties required her to interact with vulnerable pregnant mothers and newborn babies, any accommodation would pose an "undue hardship" on the hospital.  The court pointed out that on a motion to dismiss, unlike on a motion for summary judgment, the court is generally not permitted to consider evidence outside of the pleadings, saying in part:

Accordingly, this Court finds that, at this stage, it is unable to properly consider the extrinsic evidence on which Defendants rely to show either that there were no other viable accommodations to Plaintiff’s vaccination, or that any accommodations would have created an undue hardship consistent with Groff....

... [O]n a fuller evidentiary record, Defendants may be able to satisfy their burden to show that any accommodation would indeed have resulted in a substantial cost to OHSU. But Defendants have not met that burden at this stage.

The court however dismissed plaintiff's 1st Amendment free exercise claim, concluding that defendants had qualified immunity.

Challenge To Maine's Past Covid Restrictions on Churches Is Dismissed

In In re COVID-Related Restrictions on Religious Services, (DE Super., Aug. 28, 2023), a Delaware Superior Court dismissed a suit challenging now-rescinded restrictions that limited the number of attendees and the activities in houses of worship during the Covid pandemic. The court concluded that the governor had qualified immunity from damage claims because at the time it was not clearly established that these types of restrictions violated the U.S. Constitution. The State Tort Claims Act gives the governor immunity from damage actions for violation of the Delaware Constitution. The court also concluded that there is no case or controversy to give it jurisdiction to issue a declaratory judgment and that plaintiffs lack standing to bring their claims, saying in part:

The Court can have no influence on the alleged past harm caused by the Restrictions when they have already been terminated years ago.

WDEL News reports that plaintiffs plan an appeal to the state Supreme Court.

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

Some Claimed Exemptions From Vaccine Mandate Were Not Religious In Nature

In Ellison v. Inova Health Care Services, three hospital employees sued because their claims for religious exemptions from the Covid vaccine mandate were rejected.  They asserted that their employer violated Title VII by failing to accommodate their religious beliefs. The court found that only the aborted fetal cell objections of one defendant were adequately linked in the pleadings to plaintiff's religious beliefs.  Other objections to the vaccine were not religious in nature.  The court said in part: 

In Ellison’s request for exception, he claims that, as a Christian, he has a right to refuse the vaccine. Specifically, he claims that the Bible requires Christians to treat their bodies as “temple[s] of the Holy Spirit,” meaning that he is “compel[led]” to care for his mind and body.... And because, in his view, taking the COVID-19 vaccine would “introduce to [his] body a medication that could induce harm,” he claims that complying with the hospital’s policy would be “antithetical to [his] desire to honor God.”...

... [T]he Court finds that, though couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety.

Two of the plaintiffs claimed that they pray over their health care decisions and follow God's answers.  The court rejected this, calling it an unverifiable claim of a blanket privilege that undermines our system of ordered liberty.

Denial of Teacher's Religious Exemption from Covid Vaccine Mandate Is Upheld

In In re Matyas v. Board of Education of the City School District of the City of New York, (NY County Sup. Ct., July 11, 2023), a New York trial court rejected a teacher's challenge to the Department of Education's denial of an exemption from its Covid vaccine mandate. The court said in part:

[P]etitioner submitted, to the DOE, a request for a reasonable accommodation exempting her from the COVID-19 vaccination requirement on the ground that her childhood Roman Catholic faith, and what appears to have been her recent conversion to an unspecified sect of Evangelical Protestant Christianity, made it impossible for her to take any type of vaccination. She cited several passages from both the Old and New Testaments of the Bible... most which discuss one’s faith and trust in the almighty, and the last of which proscribes the mixing of human blood with the mixing of the blood of sacrificed animals. . As the petitioner phrased it, although she teaches biology, 

“[t]here is only one GOD. To trust that a vaccine will protect us more than God would, is to have a false idol. I cannot betray my faith and GOD and my conscious. I will not follow any false idols in search of salvation I know that my salvation is secure in my faith in GOD.”...

With respect to ... her First Amendment right to the free exercise of religion and discrimination in employment on the basis of religion, the petitioner has not established either that the City’s vaccine mandate was premised upon religion, as she has not demonstrated that her conclusions about the alleged proscription of desecrating the human body with vaccinations is an established Catholic or Evangelical doctrine, or shown that they were more than her personal interpretation of her obligations as a practicing Catholic or Evangelical....

3 Courts Rule on Claims for Religious Exemptions from Covid Vaccine Mandates

Last week, federal district courts in three states handed down decisions in cases in which a former employee was suing his or her employer for refusing to provide them with a religious exemption from the employer's Covid vaccine mandate.

In Crocker v. Austin, (WD LA, June 22, 2023) a Louisiana federal district court dismissed as moot a suit for injunctive relief brought by seven military service members who faced involuntary separation from the Air Force when they filed suit. However, in January 2023 the military rescinded the vaccine mandate and updated personnel records to remove any adverse actions associated with the denial of requested exemptions. Any remaining suit for damages falls under the Tucker Act and must be brought in the Court of Federal Claims.

In Leek v. Lehigh Valley Health Network, (ED PA, June 23, 2023), a Pennsylvania federal district court refused to dismiss a Title VII religious discrimination claim filed by a nurse who was denied religious exemptions from a hospital's requirement to receive Covid and influenza vaccines. The hospital claimed that the nurse's objections were not religious in nature. The court held that the nurse's belief that chemical injections may make her body impure in the eyes of the Lord, and her objections to some vaccines because they were developed using aborted fetal cells, are both religious objections.  The fact that some of her other objections were more medical or political did not negate the presence of religious objections.

In Algarin v. NYC Health + Hospitals Corp., (SD NY, June 23, 2023), a New York federal district court dismissed claims by an Internet technology professional at a health care facility that denial of his request for a religious exemption from the state's Covid vaccine mandate violated Title VII and the New York State and City Human Rights Laws. The court disagreed, holding that requiring the employer to violate a state rule would place an undue burden on the employer. The court also rejected plaintiff's 1st Amendment free exercise claim, finding that the vaccine mandate was a neutral law of general applicability.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Minnesota Appeals Court Decides 4 Cases on Religious Exemptions from Vaccine Mandates

Yesterday, the Minnesota Court of Appeals decided four separate appeals from decisions of Unemployment Law Judges who denied unemployment benefits because an applicant refused on religious grounds to comply with an employer's Covid vaccine mandate. Goede v. Astra Zeneca Pharmaceuticals, LP, (MN App., June 12, 2023), was the only one of the four cases published as a precedential decision. The court affirmed the ULJ's denial of benefits even though the state Department of Employment and Economic Development urged its reversal.  The court said in part:

The ULJ found that “Goede does not have a sincerely held religious belief that prevents her from receiving a COVID-19 vaccine.” The ULJ explained: “Goede’s testimony, when viewed as a whole, shows by a preponderance of the evidence that Goede’s concern is about some vaccines, and that she is declining to take them because she does not trust them, not because of a religious belief.” The ULJ further stated that “[w]hen looking at the totality of the circumstances, Goede’s belief that COVID-19 vaccines are not okay to put in her body is a personal belief not rooted in religion.”

In Daniel v. Honeywell International, Inc., (MN App., June 12, 2023), the appellate court again upheld a denial of benefits, this time to a former employee who refused both the Covid vaccine and refused to comply with the employer's religious accommodation.  The court said in part:

Relator asserts that Honeywell’s COVID-19 policy requiring that he get weekly COVID-19 tests and submit the results “required [him] to defy [his] religious faith.” He asserts that he was upholding his religious faith “by practicing [his] God given right of ‘control over [his] medical’ by not subjecting Jesus Christ’s temple to forcefully coerced medical treatments such as weekly PCR and/or rapid antigen test requirements.”...

The ULJ found that relator lacked credibility because he provided inconsistent testimony and he struggled to explain his religious beliefs.

The court reversed the ULJ's denial of benefits in two other cases. In Benish v. Berkley Risk Administrators Company, LLC, (MN App., June 12, 2023) the court said in part:

The ULJ found that Benish made a “personal choice” to refuse the vaccine, but Benish did not testify to any personal reasons for refusing the vaccine. Instead, he consistently testified that his reason for refusing it was religious. The ULJ also placed improper weight on inconsistencies in Benish’s religious beliefs and on the fact that the Pope had encouraged vaccination in determining that Benish’s beliefs were not sincerely held.... 

... [W]e conclude that the ULJ’s finding—that Benish did not have a sincerely held religious belief that precluded him from getting a COVID-19 vaccine—is unsupported by substantial evidence and must be reversed.

In Millington v. Federal Reserve Bank of Minneapolis, (MN App., June 12, 2023), the court reversed the ULJ's denial of benefits, saying in part:

Millington clearly and consistently testified regarding her religious reasons for refusing the COVID-19 vaccine. Millington’s testimony concerning personal reasons for refusing the vaccine— that she already had COVID-19 and believed she did not need the vaccine and that she had concerns about the safety of the vaccine—are not sufficient to constitute substantial evidence.

In addition, although we generally defer to a ULJ’s credibility findings, the ULJ’s credibility finding in this case was based on at least two erroneous considerations. First, the ULJ erred by relying on the absence of direction from a religious leader to support a finding that Millington did not have a sincerely held religious belief.... Second, the ULJ failed to explain how Millington’s use of over-the-counter medications or alcohol is pertinent to her objection to the COVID-19 vaccine based on its relationship to fetal cell lines. Consequently, the ULJ’s credibility determination is not entitled to the same deference typically owed by an appellate court.

Football Coach Can Proceed on Some Claims Against University After Termination for Refusing Covid Vaccine

In Rolovich v. Washington State University, (ED WA, May 30, 2023), a Washington federal district court refused to dismiss failure to accommodate and breach of contract claims by the head football coach of Washington State University who was terminated after he refused to comply with the state's Covid vaccine mandate. Discussing plaintiff's Title VII failure to accommodate claim, the court said in part:

Plaintiff’s claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine is sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief.... Plaintiff has adequately pleaded the first element of the prima facie case for a failure to accommodate claim. Defendant does not challenge the remaining elements of Plaintiff’s prima facie case....

Defendant asserts that Plaintiff’s accommodation request would have resulted in increased travel costs, harm to recruitment and fundraising efforts, and damage to WSU’s reputation and donor commitments, in addition to an increased risk of exposure to COVID-19 to student athletes and other coaching staff....

While these claims of undue hardship may be supported by evidence not presently before the Court, they are insufficient on their own to support a finding that Plaintiff’s accommodation would have imposed an undue hardship....

The court concluded that the WSU Athletic Director was entitled to qualified immunity as to the coach's free exercise and due process claims. USA Today reports on the decision.

1st Circuit: Free Exercise Claim by Maine Healthcare Workers Over COVID Mandate May Move Forward

 In Lowe v. Mills, (1st Cir., May 25, 2023), the U.S. 1st Circuit Court of Appeals reversed in part a Maine district court's dismissal of a suit by seven health care facility workers whose request for religious exemptions from the state's COVID vaccine mandate was rejected.  The court said in part:

The claims against the State assert, among other things, that the Mandate, by allowing medical but not religious exemptions, violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution....

We agree with the district court that the complaint's factual allegations establish that violating the Mandate in order to provide the plaintiffs' requested accommodation would have caused undue hardship for the Providers, and so affirm the dismissal of the Title VII claims. But we conclude that the plaintiffs' complaint states claims for relief under the Free Exercise and Equal Protection Clauses, as it is plausible, based on the plaintiffs' allegations and in the absence of further factual development, that the Mandate treats comparable secular and religious activity dissimilarly without adequate justification.

9th Circuit Remands Employees' Challenge to Vaccine Exemption Denial

In Keene v. City and County of San Francisco, (9th Cir., May 15, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a decision from a California federal district court that denied preliminary relief to two city and county employees who were denied religious exemptions from CCSF's COVID vaccine mandate. The appeals court said in part:

The district court erroneously concluded that “[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine...."...

Beyond the district court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.... 

The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines . . . are . . . derived from murdered babies” and generally stating that personal preferences are not sincere religious beliefs. And CCSF offered no argument or evidence that Appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry....

Courthouse News Service reports on the decision.

Court Calls for Fuller Explanation for Denying Religious Exemption from COVOD Vaccine Mandate

 In Matter of Daniels v. New York City Police Dept., (Sup. Ct. NY County, April 24, 2023), a New York state trial court remanded to the City of New York Reasonable Accommodations Appeals Panel a claim for a religious exemption from the COVID vaccine mandate brought by a NYPD officer assigned to the Emergency Services Unit.  The initial determination by the NYPD Equal Employment Opportunity Division was communicated through a pre-printed form with three boxes checked off indicating insufficient documentation and explanation as well as a lack of a history of vaccine refusal.  The Appeals Panel merely adopted the EEOD's reasoning.  In calling for a fuller explanation, the court said in part:

The NYPD EEOD's determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action. The court has nothing before it that would enable it to analyze how the pre-printed "reasons" that were checked off on its determination letter related to or defeated the petitioner's request for accommodation. This type of conclusory administrative determination would require the court to speculate as to the thought processes of the person who checked the boxes, and provide its own reasons for those choices, an approach prohibited by longstanding rules of law.

Dismissal Recommended in Healthcare Worker's Claim for Religious Exemption from Vaccine Mandate

In Bolonchuk v. Cherry Creek Nursing Center/ Nexion Health, (D CO, April 12, 2023), a Colorado federal magistrate judge recommended dismissing a suit by a former nursing home healthcare employee whose 18-year long employment was terminated after she refused on religious grounds to comply with her employer's Covid vaccine mandate for healthcare workers. A state regulation required the vaccine mandate. The court rejected plaintiff's 1st Amendment claim because defendant was not alleged to be a state actor.  It also rejected her claim that Title VII required a religious accommodation, saying in part:

Defendant would have had to violate a state law (i.e., the regulation mandate) in order to accommodate Plaintiff, clearly establishing an undue hardship.