Frontline Health Workers Lose Ground in Religious Vaccine Cases

Patient-care medical workers who were denied religious exemptions to Covid-19 vaccine mandates are struggling to get their lawsuits in front of federal juries, despite the US Supreme Court making it harder for employers to deny faith-based accommodations.

The 2023 Groff v. DeJoy decision changed the way employers assess religious exemption requests from workplace policies that conflict with workers’ beliefs. Employers must prove that granting an accommodation “would result in substantial increased costs” to their business, rather than just a minimal burden or expense, causing undue hardship.

Groff raised some expectations among legal observers that religious objections to vaccine requirements under Title VII of the 1964 Civil Rights Act would succeed more often, even if the facts in each case differ. While some workers successfully invoked Groff, those in patient-facing roles repeatedly failed to win summary judgment rulings, according to a Bloomberg Law docket analysis of appellate court rulings.

There’s a “close nexus” between the purpose of vaccine rules and the “goal of the health care business itself, which is to make and keep people healthy,” said Elizabeth Sepper, a religious liberty, health law, and equity legal scholar at the University of Texas-Austin School of Law.

At least 10 appellate court opinions referencing Groff found undue hardship to an employer when an exemption risked violating state vaccine rules and exposing medically vulnerable patients and staff to the virus. Avoiding vaccination with daily testing, which may necessitate costly operational changes, and remote work that can hinder essential job functions, are among the factors that qualify.

The cost of having unvaccinated health care workers is making medically vulnerable patients ill and exposing providers to liability, Sepper said.

Workers demonstrating a religious basis for an exemption cited scriptures concerning bodily sanctity and personal conscience, or claimed that vaccines contain aborted fetal cell lines.

Caselaw ‘Undisturbed’

The Ninth, Sixth, Fourth, Third, and First circuits affirmed summary judgment rulings on undue hardship grounds for both private and public sector employers that provide health-related services.

Meanwhile, the Eighth Circuit will soon rule on the issue in a similar case.

Some circuits also examined the sincerity of a religious objection, a threshold analysis in religious accommodation cases. Others generally assumed sincerity when it’s not disputed, and skipped to whether an accommodation would be burdensome.

The rulings indicate that hardship remains a fact-specific inquiry, and patient safety and compliance duties are as compelling defenses for health-care employers as they were in pre-Groff litigation, said Dawn Reddy Solowey, a partner at Seyfarth Shaw LLP.

“Courts are reluctant to second guess what health care employers did to protect health and public safety during an emergency,” she said. “The entire body of case law and guidance remained undisturbed,” particularly in this context.

The pandemic is fading in time and memory, but health threats remain, and these rulings will guide courts if similar litigation arises, Solowey added.

“We are seeing increasing resistance to vaccination and an uptick in requests for religious exemption from vaccines” for measles, mumps, and rubella, and the flu, she said.

Plaintiffs who have successfully challenged their terminations after refusing to get vaccinated include a Catholic ex-IT specialist for Blue Cross Blue Shield of Michigan, who notched a nearly $12.7 million federal jury award last year.

However, the parties later settled and agreed to dismiss the case with prejudice after the insurer requested a new trial and a reduction of the verdict amount. The judge hasn’t ruled on that request.

A bias case against the Children’s Hospital of Philadelphia by a former supervisor was also headed to trial before the parties reached a deal.

Title VII v. State Preemption

Ongoing litigation has also sparked a debate about whether conflicts between state vaccine laws and Title VII’s requirement for reasonable accommodations for religious beliefs can justify employers’ noncompliance with the federal law.

A pending Supreme Court petition from a group of former New York health-care workers offers the justices a chance to resolve a circuit split on the issue, including whether a contrary state law or regulation can override Title VII and the Constitution’s Supremacy Clause.

But attorneys for the defendants said review is unnecessary because the petition ignores that the Second Circuit declared the case moot, as the mandate was repealed in 2023. The petitioners were also accused of misrepresenting the circuit rulings they cited.

Legal observers stopped short of predicting the case’s outcome, but said courts often give deference to safety-sensitive or patient-care settings.

“Health care employers are between a rock and a hard place,” due to the nature of the business, Sepper said. “We have a long tradition of requiring health care workers to be vaccinated against communicable diseases.”

Interactive Process

Whether employers must engage in an interactive process to determine their legal obligations when assessing religious accommodation requests is also part of the debate among courts and litigants.

The Fourth Circuit recently adopted the Sixth Circuit’s view that Title VII doesn’t impose this legal requirement, unlike for accommodations sought under the Americans with Disabilities Act. Employers can justify different responses to religious versus ADA exemptions, but blanket denials aren’t allowed under either statute.

Plaintiffs argue that Groff’s requirement for a case-by-case review of religious exemption requests means employers should make good-faith efforts to identify workable alternatives.

Title VII may not require a formal interactive process, but documenting individualized review of alternative exemptions allows employers to defend denials and claims of religious bias, said Jonathan Crotty, a partner at Parker Poe Adams & Bernstein LLP.

“It can be harder to justify that end result if you don’t show that you spoke with the employee, considered alternatives, and perhaps reached out to an outside expert to look at them and to see what the real impact is,” he said.