In September 2023, federal trial courts in Wisconsin and Kentucky issued decisions dismissing plaintiffs’ claims related to employers’ COVID-19 vaccination and testing requirements. The decisions (1) interpreted “undue hardship” following the Supreme Court of the United States’ Groff v. DeJoy decision; (2) determined whether an objection to testing was based on “religious beliefs” or merely “isolated moral teaching”; (3) determined whether Title VII of the Civil Rights Act of 1964 requires employers to engage in the interactive process with respect to religious accommodation claims; and (4) determined whether testing and vaccination requirements constitute a “medical examination” under the Americans with Disabilities Act (ADA).

Quick Hits

• Federal trial courts in Wisconsin and Kentucky recently issued decisions in favor of employers facing COVID-19–related legal challenges.
• A district court in Wisconsin found that an employer was not required under Title VII to engage in an interactive process “to help plaintiffs craft a religious objection.”
• A district court in Kentucky found that paying a part-time employee to accommodate a plaintiff claiming religious objection to vaccination whose managerial position required her to be on-site would create an undue hardship for the employer.

Bube v. Aspirus Hospital, Inc.

On September 15, 2023, in Bube v. Aspirus Hospital, Inc., the U.S. District Court for the Western District of Wisconsin dismissed claims under Title VII and the ADA brought by two nurses, arising out of the termination of their employment for refusing a COVID-19 vaccination. After analyzing the nature of the nurses’ objections to the vaccine, the court concluded the objections were based “on their personal views about the necessity, efficacy, and safety of the vaccine,” rather than on religious beliefs.

Christine Bube requested a religious exemption from Aspirus’s vaccine mandate, noting that she was a practicing Catholic and that she had previously contracted COVID-19. Because of her COVID-19 exposure, she stated, she had “acquired a natural immunity” that obviated the need for vaccination. As a Catholic, she stated she was “required to follow [her] judgement of conscience.”

Connie Hedrington also requested a religious exemption, stating, “It is my body and my choice….I sincerely believe It is my God given right to choose for myself what vaccines I will or will not take.”

Ultimately, the court held that the only specific objections raised by Bube and Hedrington to the COVID-19 vaccine were “objections about personal autonomy, as well as the safety and efficacy of the vaccine,” which were not tied to any particular religious belief or practice that was inconsistent with the vaccine.

Bube and Hedrington also argued that Aspirus did not seek “clarification of [their] beliefs” or engage in an interactive process to understand their religious beliefs. The court disagreed, finding no requirement for employers to engage in an interactive process in the context of Title VII. Furthermore, the court found no requirement for “Aspirus to help plaintiffs craft a religious objection.”

Finally, Bube and Hedrington argued that the testing and vaccination requirements were a “medical examination,” in violation of 42 U.S.C. § 12112(d)(4)(A), which bars employers from requiring medical examinations unless certain criteria are met. The court rejected this argument, finding that 42 U.S.C. § 12112(d)(4)(A) did not apply to the COVID-19 vaccine mandate because a medical examination seeks information about an employee’s health, and a vaccine mandate does not seek such information.

DeVore v. University of Kentucky Board of Trustees

On September 18, 2023, in DeVore v. University of Kentucky Board of Trustees, the U.S. District Court for the Eastern District of Kentucky granted summary judgment to the University of Kentucky on Laurie DeVore’s religious discrimination case, finding her objections to the vaccine were not based on religious belief, and, in any event, could not be accommodated absent undue hardship.

DeVore was a department manager, responsible for clerical and logistical support of her department. When COVID-19 struck, the university mandated remote work for approximately eighteen months. After the university directed employees to return to work, DeVore requested an exemption from returning to in-person work at the facility. The university denied her request, and placed her on unpaid administrative leave. Ultimately, DeVore retired in lieu of termination of employment.

DeVore stated that she believed “it would be an affront to God for her to involuntarily subject herself to medical testing without informed consent” and that the university’s COVID-19 policy had removed her ability “to choose what shall or shall not happen to [her] person” by using weekly testing as a penalty for not taking the vaccine. DeVore sued the university under state and federal law, arguing her religious beliefs prevented her from taking the vaccine or submitting to testing. The university moved for summary judgment, arguing DeVore could not establish a prima facie case of religious discrimination, and further that the requested accommodation would cause the university undue hardship.

In arguing that DeVore could not establish a prima facie case, the university conceded that DeVore had informed the university of her concerns and that she had been discharged for failing to comply with the vaccine policy. Instead, the university argued that DeVore’s objection to COVID-19 testing and the vaccine was not based on a religious belief. The court agreed with the university, noting that contrary to DeVore’s contention, the university was not manipulating her to take the vaccine in contradiction of any religious beliefs. Rather, the university offered employees the choice between vaccination or weekly testing, and it did not subject any employees to adverse action for choosing weekly testing over vaccination. DeVore also argued, unsuccessfully, that weekly mandatory testing “violate[d] established precepts that are upheld in the laws of our nation and [her] God-given rights to be able to choose what shall or shall not happen to [her] person.” The court concluded this basis was not religious in nature, finding that such broad objections represent an “‘isolated moral teaching,’” rather than protected religious belief.

The court also found that DeVore’s claims failed because the university had demonstrated it could not accommodate her beliefs without an undue hardship. In so holding, the court noted that as department manager, DeVore was the face of her department, and she interacted daily with faculty, staff, and students. Notably, the university had previously denied a request for DeVore to work from home two days per week for reasons unrelated to her religious beliefs, finding that a “fundamental aspect of the Department Manager job is to be present in the department to welcome students and visitors, support faculty, and answer questions as needed.”

Thus, the accommodation DeVore requested would have permitted her to have not performed a function that the university deemed essential, and it would have imposed a substantial burden on the university’s business. The court also rejected as unreasonable DeVore’s alternative proposal that the university hire a part-time employee, finding it would result in “an indefinite payment of an entire salary for duplicative work,” which would amount to a “substantial burden.”

Key Takeaways

As COVID-19–related legal cases continue to wind their way through the litigation process, these decisions provide guideposts for employers defending against Title VII and ADA claims arising from COVID-19 protocols. First, unlike the ADA, at least one court has held that Title VII does not require employers to engage in the interactive process. Second, courts have held that testing and vaccination requirements are not considered medical examinations under the ADA. Third, at least one court has held that a belief based on an “isolated moral teaching” that is not tied to a specific religion is not a protected basis to decline a vaccination.

In the last several months, courts have found objections to the vaccine based on personal autonomy and concerns about safety and efficacy are not a protected basis for declining a vaccination under Title VII. Further, courts have held that requesting the removal of an essential function, such as in-person attendance, or requiring an employer to add headcount to cover an employee’s essential functions may be an undue hardship under Title VII.