Perspectives: New COVID cases: religion and refusals

Marshall H. Tanick//October 26, 2023//

An illustration showing a 3D image of a gavel resting next to a coronavirus model on a judge's block

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Marshall H. Tanick//October 26, 2023//

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“COVID-19 has threatened the lives and livelihoods of everyone on this planet.”

Dr. Tedros Adhanom Ghebreyesus, director-general, World Health Organization

The recent uptick of COVID was a stark reminder that the affliction still exists. So, too, are COVID-related cases, including ones concerning refusals by employees to follow company vaccination policies.

Four of them were decided earlier this year by the Minnesota Court of Appeals. The outcomes of the cases, like the severity of the symptoms, were varied, as were a pair of decisions of the 8th U.S. Circuit Court of Appeals.

The persistence of the disease, although not at pandemic stage any longer, along with the four unemployment compensation cases stemming from it, warrant review as a potential surge of the malady is anticipated this fall and winter.

The cases were well analyzed by this publication when they were issued earlier this spring. See L. Brown “Court of Appeals addresses latest exemption claims in vaccine firings,” Minnesota Lawyer, June 20, 2023. But they take on a somewhat different complexion in light of a subsequent ruling by the U.S. Supreme Court, near the end of its 2022-23 term, expanding the parameters of religious freedom claims in the workplace.

Religious rulings

The quartet of cases addressed by the Minnesota Court of Appeals consists of COVID-related unemployment claims all turned on religious grounds.

An employee’s refusal to comply with his employer’s COVID vaccine requirement was denied unemployment compensation benefits because he objected for “purely secular reasons” in Goede v. Astra Zeneca Pharmaceuticals, LP, 992 N.W.2d 700 (Minn. Ct. App. June 12, 2023). The appellate court reiterated its standard for determination of these types of cases, holding that a vaccination-refusing employee cannot successfully assert a claim of violation of their religious freedom rights under the First Amendment unless they can show that their resistance is based upon a “sincerely held religious belief.” In this case, the employee failed to do so because he questioned the validity of the testing of the vaccination process, rather than basing the refusal strictly on “religious” grounds.

An employee who claimed that it was too burdensome for him to submit his COVID test results also was denied unemployment compensation benefits in Daniel v. Honeywell International, Inc., 2023 WL 3941697 (Minn. Ct. App. June 12, 2023)(unpublished). The employee was unable to establish that his refusal to submit to COVID testing was based on any sincere religious belief.”

But the appellate court reversed a pair of denials of benefits by an unemployment law judge (ULJ) with the Department of Employment & Economic Development (DEED) in Benish v. Berkley Risk Administrators Co., LLC, 2023 WL 3938996 (Minn. Ct. App. June 12, 2023)(unpublished) and Millington v. Federal Reserve Bank of Minneapolis, 2023 WL 3939525 (Minn. Ct. App. June 12, 2023)(unpublished). In both cases, benefits were proper for the employees because they held “sincerely held religious beliefs” that supported their refusals to be vaccinated. In each case, there was insufficient evidence in the record to support the contrary determination by the ULJs.

Religious resurrected

The Minnesota COVID cases came shortly before the U.S. Supreme Court resurrected a defense of accommodation of religious beliefs to fend off disciplinary action in the workplace in Groff v. DeJoy, 143 S.Ct. 2279 (2023). The case involved a postal worker in a small town in Pennsylvania who refused to take shifts on Sundays, when the facility was shorthanded, because of his religious beliefs that it was a Sabbath day of rest.

He challenged his termination under the Free Exercise Clause of the First Amendment and a parallel statutory provision under the Religious Institutions and Land Use Planning Act (RILUPA), 42 U.S.C. § 2000.00, which requires accommodation of religious beliefs.

The Supreme Court established a long standing doctrine more than 30 years ago, in a decision written by Justice Antonin Scalia, that neutral laws that are “generally applicable” to trump religious beliefs refusing to comply with these measures in Employment Division of Oregon v. Smith, 494 U.S. 872 (1990). Chafing at that doctrine for decades, advocates for religious claimants have sought to chip away at it, or preferably demolish it altogether, and they came pretty close to succeeding in the Groff case.

The court, in a unanimous decision — conservatives and liberals alike — upheld the employee’s claim and ruled that he was wrongfully terminated, which allowed him to get his job back and probably a large award of attorney’s fees under the Federal Civil Rights Act, 42 U.S.C. § 1988. His attorneys will earn multiple times the postal worker’s annual salary for the successful outcome, as the “prevailing party” under both the Civil Rights Act and the RILUPA.

The unanimity was somewhat surprising, from this often-fractured tribunal. But it was praised by the claimant and the government representing the postal service, agreeing that some accommodation was appropriate. But they quarreled over the precise wording of the applicable legal standard.

The court ultimately adopted one favorable to the employee, holding that a religious claim must be honored unless doing so would impose a “substantial” economic burden on the employer, an extension of the rights of religious claimants in the workplace.

Federal fights

The 8th Circuit followed the Groff decision with another COVID-related ruling in Salier v. Walmart, Inc., 76 F.4th 769 (8th Cir. Aug. 7, 2023), siding with pharmacy in a fight over its refusal to fill prescriptions for ivermectin and hydroxychloroquinine, which are deemed to be “off” label usage of those medications for treatment of severe COVID conditions, which was prescribed by a Missouri physician for a Minnesota couple living in Albert Lea, where a pair of dispensing facilities refused to fill the order.

Affirming a ruling by the U.S. District Court Judge Patrick Schlitz of Minnesota, F. Supp. 3rd 772 (D. Minn. 2022), late last year, the appellate court rejected the claimants’ assertion that the refusal to provide the medication violated the couple’s common law right of “self-determination” of medication, along with claims for intentional infliction of emotional distress. The decision, written by Judge James Loken, of Minnesota, agreed with Judge Schlitz in refusing to recognize “the sweeping new right” of patients to select any medicine the desire.

The doctrine of mootness was invoked to extinguish the hold-over federal policy regarding workplace vaccination in State of Missouri v. Biden, 2023 WL 3862561 (8th Cir. June 7, 2023)(unpublished) (per curiam). The case challenged a requirement by the Biden administration that federal contractors have employees vaccinated for COVID. Appealing an adverse lower court decision, the government appealed to the 8th Circuit, which held that the case was not justiciable because the executive order had been revoked when COVID subsided this spring. Therefore, the protocol cannot be enforced, mooting the case and warranting dismissal of the appeal.

These cases show that, like COVID, litigation stemming from the affliction have varied symptoms and diverse outcomes.

PERSPECTIVES POINTERS

COVID since early 2020 outbreak