Vaccine Objector Loses Challenge

In Marte v. Montefiore Medical Center, (SD NY, Oct. 12, 2022), a New York federal district court dismissed claims by a former Medical Center employee who sued after the Medical Center refused to provide her a reasonable accommodation when she refused to receive a COVID-19 vaccine which was required for all employees.  The court rejected her Title VII claim saying in part:

Plaintiff does not allege that she informed Defendant that she had a religious objection to the COVID-19 vaccination, or even that Defendant was aware that she has a religious objection to the vaccine; she pleads only that she told her employer she did not want the vaccine and asked for "a reasonable accommodation as defined by law." ... Defendant could not have discriminated against Plaintiff on the basis of her religious beliefs if Defendant was unaware of those beliefs....

Even if Plaintiff had pleaded a prima facie claim for religious discrimination, her argument is foreclosed by the Second Circuit's decision in We The Patriots. Defendant correctly argues that Plaintiff's requested accommodation would qualify as an undue hardship because it required Defendant to violate the law.

The court also rejected her free exercise, equal protection and other challenges.

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

Court Rejects Religious Defense To Illegal Possession Of Firearm Charges

In United States v. Harper, (ND IA, Sept. 30, 2022), an Iowa federal district court refused to dismiss indictments charging defendant with  possession of a firearm by a felon and unlawful drug user.  Defendant argued that he is a Muslim who practices Sharia Law which calls for armed self-defense, including the possession of a firearm. The court, accepting the Report and Recommendation [Lexis link] of a magistrate judge, said in part:

There is no less restrictive means to achieve the Government’s compelling interest in uniformly applying gun laws for public safety than prosecuting Harper.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

Police and Fire Fighters Sue Over COVID Vaccine Mandate

Suit was filed last week in a New Jersey federal district court by a group of seven police officers and firefighters who were denied a religious accommodation to excuse them from a COVID vaccine mandate. The complaint (full text) in Aliano v. Township of Maplewood, (D NY, filed 9/16/2022), contends that the denial violates Title VII and the New Jersey Law Against Discrimination. New Jersey 101.5 reports on the lawsuit.

Musicians Sue Over Denial Of Religious Exemption From Vaccine Mandate

A Title VII religious discrimination lawsuit was filed yesterday in a Florida federal district court by three musicians who have religious objections to COVID vaccines. They were placed on partial-paid leave by their private employer, an arts organization that operates the Naples Philharmonic, when they refused to comply with the employer's vaccine mandate.  The complaint (full text) in Leigh v. Artis-Naples, Inc., (MD FL, filed 9/21/2022), alleges in part:

Artis-Naples implemented an illegal policy that no exemption or accommodation would or could be granted to any employee who had to be present onsite to perform their job....

Artis-Naples irrationally and pretextually argues that accommodating unvaccinated employees who follow alternative preventative measures would place an “undue hardship” on its operations—specifically, that unvaccinated employees present “a direct threat” of infection to patrons and coworkers....

Florida law requires Artis-Naples to exempt Plaintiffs from the Mandate....

As a matter of law, it can never be an “undue hardship” for an employer to comply with the state law and public policy.

Employees Fired For Religious Refusal Of COVID Vaccine Bring Title VII Suit

Four former employees of a continuing care retirement community filed suit in an Alabama federal district court last week claiming that they were wrongly fired for refusing the COVID vaccine on religious grounds.  The 105-page complaint (full text) in Hamil v. Acts Retirement-Life Communities, Inc., (SD AL, filed 9/15/2002), contends that plaintiffs were subjected to a hostile work environment, harassment, and wrongful termination based on their sincerely held religious beliefs. They were denied religious exemptions, or had previously granted religious exemptions rescinded. According to the complaint:

Such conduct was undertaken to preserve Defendants' exorbitant sums of monetary assistance in the form of government grants, coronavirus relief funds, and Medicare and Medicaid funds....

In the case at hand, the crux of the issue is the unlawful employment practices undertaken by Defendant and not the constitutional validity of any vaccine mandate....

The complaint contains lengthy descriptions of plaintiffs' religious beliefs and alleges various violations of Title VII as well as numerous state law claims. 1819News reports on the lawsuit.

6th Circuit Refuses To Stay Class-Wide Injunction Against Air Force Enforcing Vaccine Mandate Against Religious Objectors

In Doster v. Kendall, (6th Cir., Sept. 9, 2022), the U.S. 6th Circuit Court of Appeals refused to grant an emergency stay of a class-wide injunction that was issued by an Ohio federal district court in a suit by Air Force and Space Force members who object on religious grounds to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military's vaccine mandate. The 6th Circuit said in part:

[T]he Department challenges only the merits of the district court’s decision to certify the class—the Department’s position being that, even if the named plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary injunction....

The Department ... argues that RFRA claims categorically cannot be certified for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court to determine separately for each service member whether the vaccination mandate is the least restrictive means of furthering a compelling governmental interest. We agree that most RFRA claims require that kind of individualized analysis; and we have no quarrel with the Department’s contention that such an analysis could not be conducted class-wide here. But the Department’s argument misconceives the nature of the RFRA claim that the district court certified. The court’s order emphasized on almost every page that the RFRA claim it certified was one based on a class-wide “clear policy of discrimination against religious accommodation requests.” ... That claim ... does not turn on an analysis of the class members’ individual circumstances and likely can be adjudicated class-wide.

Liberty Counsel issued a press release announcing the decision.

Mask Mandate Did Not Violate Free Exercise Rights

 In Bush v. Fantasia, (D MA, Sept. 12, 2022), a Massachusetts federal district court dismissed claims that a COVID mask mandate imposed by a town Board of Health and a public library violated plaintiffs free exercise rights. Plaintiffs claimed that they "have sincerely held religious beliefs that proscribe our wearing face masks and/or submitting to coerced medical devices/products such as face masks." The court said in part:

Plaintiffs do not identify a religious practice or explain the coercive effect the mask mandates had on that practice. A mere vague allegation that mask mandates violate their religion is not enough to survive even the most a generous pleading standard....

Even assuming arguendo that Plaintiffs have sufficiently alleged a burden on their exercise of religion, their claims would still fall. The mask mandates were facially neutral and generally applicable, i.e., they did not single out, or make any reference to, a religion or any religious practice and applied equally to all....

The court also rejected equal protection, due process and a number of other challenges. 

7th Circuit: Plaintiffs Failed To Show Facts Supporting Free Exercise Objections To COVID Vaccine Mandate

In Lukaszczyk v. Cook County, (7th Cir., Aug. 29, 2022), the U.S. 7th Circuit Court of Appeals, ruling on three separate district court cases, refused to order preliminary injunctions against local and state COVID vaccine mandates.  The court said in part:

The plaintiffs argue the mandates violate their constitutional rights to substantive due process, procedural due process, and the free exercise of religion. They also contend the mandates violate Illinois state law. Although the plaintiffs could have presented some forceful legal arguments, they have failed to develop factual records to support their claims. Because the plaintiffs have not shown a likelihood of success on the merits, we affirm the decisions of the district judges....

Discussing plaintiffs' Free Exercise claims, the court said in part: 

[I]f these assertions have merit, there is no record evidence to support them. The plaintiffs should have gathered facts and created a record detailing any wrongful denials of requests for religious exemptions. Instead, they made a facial challenge, which ignored the text of the policy’s religious exemption and the status of the plaintiffs’ exemption requests. This does not show a violation of their right to freely exercise their religions.

NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Marine Corps Enjoined From Discharging Religious Objectors To COVID Vaccination

In Colonel Financial Management Officer v. Austin, (MD FL, Aug. 18, 2022), a Florida federal district court certified as a class all Marines who have a sincere religious objection to COVID vaccination and whose request for a religious accommodation has been (or will  be) denied on appeal. According to the court:

The Marine Corps has granted only eleven accommodations, less than three-tenths of a percent (0.295%) of the 3,733 applications. The record presents no successful applicant other than a few who are due for retirement and prompt separation.

The court found "a systemic failure by the Marine Corps to satisfy RFRA." It said in part:

Notwithstanding a chaplain's affirmation, the Marine Corps rejects as insubstantial any religious objection grounded in the vaccine's connection to aborted fetal tissue because "fetal stem cells are neither used in the manufacture of the Pfizer COVID-19 vaccine nor are they present in the vaccine itself." This "finding," a unilateral lay declaration about a much discussed and much-debated topic, says nothing about the use of aborted fetal cells in the development of the vaccine and this finding says nothing about (and can say nothing about) the theological consequences of that use or about either moral or factual uncertainty. The "finding" says nothing about the religious concepts of, for example, accepting a personal benefit from evil, assisting someone in profiting from evil, cooperating in evil, appropriation of evil, de-sensitization to evil, moral contamination by intimacy with evil, ratification of evil, complicity with evil, or other considerations undoubtedly familiar to a theologian and likely familiar to a thoughtful and religious lay person who has contemplated evil.

The court issued a preliminary injunction against enforcement of the vaccine mandate against class members, or discharge or harassment of them.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

Court Gives Guidance On Assessing Whether Parents Had Sincerely Held Religious Belief Opposing Vaccination

In In the Interest of C.C., (GA Sup. Ct., Aug. 23, 2022), the Georgia Supreme Court gave guidance to a Juvenile Court on how to determine whether parents' objections to vaccinating their children (who were now in custody of the state) are based on a sincerely held religious belief. The court said in part:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children.... The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling....

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance.... Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” ... The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.”...

The juvenile court can weigh various factors, including ... how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” ... Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]”... But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance....

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Class Action Settlement Reached In Religious Challenge To Vaccine Mandate

 A 24-page class action Settlement Agreement (full text) was filed last week in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem, (ND IL, filed 7/292/2022).  The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system's COVID vaccination mandate. If the settlement is approved by the court, the hospital system will pay $10,330,500 in damages. Most former employees will receive $25,000 each.  $2,061,500 of the settlement amount will go to plaintiffs' counsel. Liberty Counsel issued a press release announcing the settlement and National Catholic Register reported on the settlement agreement.

National Class Action and TRO Approved For Air Force Members With Religious Objections To COVID Vaccine

In Doster v. Kendall, (SD OH, July 14, 2022), an Ohio federal district court certified a national class action on behalf of all active duty and active reserve members of the Air Force and Space Force who have submitted a request for a religious accommodation from the military's COVID vaccine requirement since September 1, 2021, who were confirmed as having had a sincerely held religious belief by Air Force Chaplains, and have had their request denied or have not had action on it. The court went on to issue a 14-day temporary restraining order against enforcing the vaccine mandate against any class member. According to the court

As of June 6, 2022, the Air Force had received 9,062 religious accommodation requests, granting 86 of those requests while denying 6,343 requests....  Following such denials, the Air Force had received 3,837 appeals from Airmen whose initial religious accommodation requests were denied.... As of June 6, 2022, the Air Force has granted only 23 of those appeals, denying 2,978....

Fox19 reports on the decision.

UPDATE: On July 27, the court issued a class-wide preliminary injunction. (Full text of order.) Fox19 reports on the decision.

ADA Does Not Justify Lower Priority For Employees With Religious, Rather Than Disability, Exemptions From Vaccine Mandate

In UnifySCC v. Cody, (ND CA, June 39, 2022), a California federal district court granted a preliminary injunction barring enforcement of one portion of a California county's complex policy on accommodating county employees who have exemptions from the county's COVID vaccine mandate. While upholding significant portions of the county's policy, the court found Free Exercise problems with one part of the arrangement. Exempt employees in high-risk job settings were placed on administrative leave, with the possibility of being transferred to a lower risk job setting. The county gave priority in obtaining a lower-risk position to those with medical and disability exemptions over those with religious exemptions, arguing that this was required by the Americans With Disabilities Act and comparable California regulations. However, the court said in part:

Even if federal or California disability law requires priority consideration of disabled applicants for open government positions, the County cannot grant that class of individuals priority consideration over those with religious exemptions in violation of the First Amendment....

The different reasons for an exemption do not affect the amount of risk the exempt employees pose to other employees or the populations the County serves. Accordingly, the Court finds that it is more likely than not that while the general Accommodations framework is facially and operationally neutral, the part of the framework that prioritizes employees in high-risk roles with secular exemptions over those with religious exemptions for consideration for vacant County positions is not neutral....