Michael Ejercito
2024-11-03 14:39:09 UTC
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PermalinkWhy workers fired for refusing Covid vaccines are starting to win in court
By Jenna Greene
November 1, 202412:05 PM PDTUpdated 2 days ago
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Legal Action by Jenna Greene
People receive their second COVID-19 boosters in Waterford, Michigan
s up syringes with the coronavirus disease (COVID-19) vaccines for
residents who are over 50 years old and immunocompromised and are
eligible to receive their second booster shots in Waterford, Michigan,
U.S., April 8, 2022. REUTERS/Emily Elconin/File photo Purchase Licensing
Rights, opens new tab
Nov 1 (Reuters) - Liberal San Francisco is hardly a hotbed of anti-COVID
vaxxers – more than 90% of the city’s population got the shot, according
to government data, opens new tab.
That’s partly why I found a verdict, opens new tab by a San Francisco
federal jury last week in favor of six public transit workers who were
fired for refusing to comply with their employer’s COVID-19 vaccine
mandate on religious grounds so unexpected.
Jurors awarded the Bay Area Rapid Transit, or BART, ex-employees more
than $1 million each for workplace civil rights violations, for a total
of $7.8 million.
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As similar cases make their way through courts around the country,
plaintiffs lawyers tell me they see the verdict as a sign of more big
payouts to come.
To misquote the Broadway tune, “If you can make it in San Francisco, you
can make it anywhere,” said James Lawrence, a Raleigh-based Envisage Law
partner representing three musicians allegedly fired by the North
Carolina Symphony after refusing the COVID vaccination based on their
religious beliefs.
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The lawsuits I've reviewed, whether targeting a food conglomerate in
Arkansas, opens new tab, an airline in Hawaii, opens new tab, hospitals
in Oregon, opens new tab or a host of cities, opens new tab, revolve
around similar claims that employers wrongly refused to accommodate
devout workers who asked to be exempt from COVID-19 vaccine mandates.
Alleging violations of Title VII of the Civil Rights Act of 1964,
plaintiffs who self-identify as Christian, Catholic, Jewish, Muslim,
Buddhist and other faiths say they were discriminated against on the
basis of religion, and that they could have masked, tested, worked
remotely or taken other measures that would have allowed them to stay on
the job.
The employers have typically countered that exempting the workers from
the vaccine would have caused undue hardship to their businesses, and
that their mandates were put in place to stem the spread of the
coronavirus and keep their workforce safe.
In 2023, the U.S. Supreme Court upped the standard, opens new tab for
“undue hardship” to mean that granting an accommodation would impose a
“substantial cost” on the business, Jeffrey Hirsch, a professor at the
University of North Carolina School of Law who specializes in labor and
employment law, told me. “That makes it easier (for plaintiffs) to bring
these claims."
One of the first verdicts came in June, when a federal jury in
Chattanooga awarded, opens new tab a Tennessee woman $687,000 –
including $500,000 in punitive damages – against Blue Cross Blue Shield
of Tennessee.
Tanja Benton, who identifies as a Christian, objected, opens new tab to
the vaccine because she alleged cell lines from aborted fetuses were
used in its research and development, which “she believed to be contrary
to God’s law,” her lawyer Doug Hamill wrote.
(Multiple public health authorities confirm, opens new tab that the
vaccines themselves do not contain fetal stem cells.)
Hamill did not respond to a request for comment, nor did Benton reply to
a message sent via LinkedIn.
Benton, a data scientist who rarely interacted with clients, proposed
that she continue to work remotely from home unvaccinated. Blue Cross
allegedly refused and gave her 30 days to look for another job with the
company that didn’t require vaccination. When she didn’t find a
position, she said she was fired.
A Blue Cross spokesperson said the company "knows that vaccines save
lives," and believes its "vaccine requirement was the best decision for
our employees and members, and that our accommodation to the requirement
complied with the law."
The U.S. Equal Employment Opportunity Commission in 2021 guidance, opens
new tab said employers should “generally” proceed on the assumption that
an employee's request for religious accommodation is based on sincerely
held beliefs.
Blue Cross and its outside counsel from Holland & Knight, however,
suggest in a pending motion, opens new tab to set the verdict aside that
Benton’s objection to the vaccine was not part of a “comprehensive
belief system.” Noting for example that she’d been had flu vaccinations
in the past, the defense argued her objection was a “one-off belief
against COVID-19 vaccination” that doesn't merit legal protection.
In the BART case, defense counsel appeared to focus less on the
sincerity of the plaintiffs’ beliefs and more on the undue burden that
the subway system claimed accommodation would present.
According to the complaint filed in San Francisco federal court in 2022,
179 of BART’s 3,900 employees requested religious exemptions to its
COVID vaccine mandate, which was put in place even though unvaccinated
passengers could still freely ride the trains.
About 70 of the employee requests – which included fetal stem
cell-related objections as well as concerns such as “alteration of a
divinely-created immune system” – were granted, but in every instance,
BART found it would be an undue hardship to provide an accommodation.
For workers with jobs such as station agent or police officer, I can
understand how working from home wasn’t an option.
But one employee had a full hazmat suit and offered to wear it while
working, plaintiffs counsel Kevin Snider of the non-profit Pacific
Justice Institute told me. Another cleaned empty trains at the end of
the line and unsuccessfully argued she could work alone while masked.
No accommodation “was ever good enough,” Snider said.
A BART spokesperson declined comment.
BART lawyers did manage to narrow the case when Senior U.S. District
Judge William Alsup in pre-trial ruling, opens new tab nixed the
plaintiffs’ claims that their First Amendment right to free exercise of
religion had been violated, ruling the vaccine mandate served a
legitimate public purpose in stemming the spread of COVID-19.
However, a similar “free exercise” claim survived against the North
Carolina Symphony in a ruling, opens new tab by U.S. District Judge
James Dever in Raleigh in late September.
Two French horn players, both Buddhists, objected to the taking the
COVID vaccine because it was allegedly tested on animals and used fetal
cell lines, while a Jewish violin player said he believes “his body is a
temple” and cannot be altered or defiled by medicine.
In refusing to dismiss the complaint, opens new tab, Dever wrote that
the plaintiffs plausibly alleged that the symphony’s president in
denying their requests wanted to promote a “vaccination ‘culture.’”
A spokesperson told me via email that the symphony's “priority has been
to protect the health and safety of our musicians and staff,” adding
that the vaccine mandate was lifted last year.
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Reporting by Jenna Greene