This article about the settlement of a lawsuit and COVID-19 vaccine religious exemptions was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
Headlines about a settlement between healthcare workers and their employer related to COVID-19 vaccine religious exemptions led people to ask what is the relevance of that settlement. This post explains this settlement and puts the issue in context.
Three points need to be made:
- First, this is not the first time an employer settled a claim for denial of religious exemption.
- Second, sometimes the settlement is the result of an employer making mistakes in handling religious exemptions and having a really bad case, and settling is the right thing.
- Third, in legal terms, the settlement has no relevance to any other case. In practical terms, though, it can be used to put pressure on other employers, even when those employers are on legally solid ground.
Background on COVID-19 vaccine religious exemption lawsuit
Apparently, Northshore University Healthsystem, a health system with over 17,000 employees, imposed a vaccine mandate. They allowed employees to apply for a religious exemption. Five hundred twenty-three employees had their religious exemptions denied – we do not know what the process was or why the requests were denied, though articles about the case mentioned that the workers cited the use of cell lines in vaccines – which might be an issue for these employers now, since Novavax, recently authorized for use, does not use such cell lines in their vaccine, so they now have another option.
Out of those employees, Northshore “estimate[d]” in the settlement, about 204 got the vaccine and remained employed, and 269 were fired or resigned.
Fourteen of these employees filed a lawsuit claiming religious discrimination, though one of them – who had a religious exemption granted – dropped out since she has no case. The conservative organization Liberty Counsel apparently represented them. Note, that this is not an anti-vaccine group, but it is a conservative group that is willing to support claims of religious freedom. On July 29, 2022, the parties submit a settlement to the federal district court in the northern district of Illinois. I will address the settlement below, but let’s start with some legal context.
The Civil Rights Act of 1964 prohibits employers with more than 15 employees from discriminating against employees based on, among other things, religion. If an employee has a sincere religious belief that conflicts with a workplace rule, an employer is supposed to provide a reasonable accommodation, unless it’s an undue burden. There are many moving parts here, and the EEOC addressed them in detailed guidance, and I wrote about them in a shorter form before.
But for the basis of this settlement, the main issue is that an employer needs to provide an accommodation if the religious belief is sincere. In spite of what some observers wrote about this settlement, this means employers can engage in some inquiries into the sincerity of the belief. The EEOC explains:
Generally, under Title VII, an employer should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs, practices, or observances. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation.
However, assessing sincerity is full of pitfalls, enough to justify multiple articles on the topic. And employers have made mistakes in this area long before COVID-19, as the cases detailed in these articles show.
In short, there are some things employers should not do, and generally, if the employer appears to be acting arbitrarily or in bad faith, employers are taking a legal risk. Employers cannot condition an exemption on a letter from a religious leader, because that discriminates against believers who are not members of organized religions.
In addition, employers cannot try and assess the rationality of the employee’s belief. And employers cannot refuse an exemption just because the employee’s home religion supports vaccines — e.g. refuse an exemption to a Catholic because the Pope spoke in favor of COVID-19 vaccines — because their job is not to enforce the religion’s rules on the employee, just to avoid discriminating against employees whose religion may conflict with a workplace rule.
And again, an appearance of bad faith would work against the employer, even if it does not fall into these categories. For example, when I saw this case filed, I suspected the company is likely to lose if the allegations are true because its behavior looked like bad faith. In this case, apparently, the company required people requesting a religious exemption to sign that they agree that if their exemption is denied they are resigning, and then denied all exemptions, including those they found sincere.
This looks like the company pretended to offer a religious exemption and then did not take it seriously. That looks like bad faith. The company would likely have done better, if that was its intent, to openly say they will give no religious exemption and justify that, and stand on those grounds.
Not only are disputes about the way employers monitor sincerity not new, but settlements of them are not new. Before COVID-19 I blogged about several of those. Note that some of the settlements here reflect an acknowledgment of the hospital that it made mistakes in implementing religious exemptions.
This is a tricky area of law, and mistakes can happen. However, that’s not always the case. Settlements can also happen when a party thinks it has a good chance of winning but the litigation costs will be too high. Settlements do not have to be accurate, and in fact, may well not be a good reflection of the merits of the case. Settlements are private agreements between the parties, and they are often opaque, as is the reasoning behind them. In fact, it is usual – though apparently not the case here – for settlements to have non-disclosure clauses covering the amount and the basis.
The Doe v Northshore University Health Settlement
The settlement of the COVID-19 vaccine lawsuit applies to all 523 members of the group that was refused religious exemptions and has three parts.
- Financial — Northshore agrees to create a fund of over ten million dollars, and pay from it: https://www.beckershospitalreview.com/legal-regulatory-issues/northshore-reaches-10-3m-settlement-in-vaccine-mandate-case.html
- $25,000 per employee that resigned or was dismissed, if they file a claim.
- $3,000 per employee that got vaccinated and stayed on and files a claim.
- An additional $20,000 to the thirteen plaintiffs who filed the claim and did not have a religious exemption (one did, and will not be paid).
In addition, Liberty Counsel will receive $2,061,500 for “reasonable attorneys’ fees and costs” for the lawsuit.
- Work-related — Northshore agreed to allow the class members to apply for re-employment. If they apply, they will receive a religious accommodation based on their request and may be rehired (“based on individual review and determination of qualifications for the open position” – this clearly also depends on finding an open position). The employee would be rehired at the same level of seniority they had when they resigned or were fired.
- Operational — Northshore University Healthsystem will change its exemption process, though the specific changes are unclear. The new program is attached as “addendum 1” to the settlement and is fairly vague.
Why did NorthShore settle? Well, we do not know. It may be that their process was sufficiently shaky that their lawyers advised that they should settle, that they cannot defend the case. It may be that their lawyers advised that even though their process is appropriate, they are facing a hostile judge and cannot win, or cannot win without extensive litigation costs. The problem in a settlement like this is that it’s not quite clear.
The complaint suggests that Northshore may have acted in a way that made it vulnerable to challenge, claiming:
Initially, NorthShore denied all or virtually all exemption requests it received, regardless of merit. More recently, after being confronted with the illegality of its conduct, NorthShore switched tactics from denying all of the Plaintiffs’ religious exemption requests to informing them that those same requests will now be ”approved” in theory and name only, but NorthShore then claimed that it would suffer an “undue hardship” if it allowed Plaintiffs to continue in their current positions. Instead, NorthShore has informed some of the Plaintiffs that “it is considering an offer of fully remote work” and the remaining Plaintiffs that they “will be offered the opportunity to apply for a fully remote position.” NorthShore has not actually made any such offers to any Plaintiff.
This would suggest that, like the case above, NorthShore offered a religious exemption and never seriously considered any requests – which would be an issue in a case. But this is the complaint, and we do not know what NorthShore would have said.
If the complaint is right, this settlement was likely justified – but it says nothing about other companies that did have a process to review exemptions and did make a good-faith effort to assert sincerity.
What does this settlement mean?
Anti-vaccine activists are celebrating the settlement as a large win against vaccine mandates. They’re not completely wrong, but they’re not quite right, either.
Legally, this is not news. Companies have settled cases claiming non-compliance with the Civil Rights Act of 1964’s requirements before. It is not legal news that a company needs to consider religious exemption requests in good faith, and that wholesale rejection can get you into legal hot water. Nor is this an actual precedent for other companies.
In fact, legally, if the complaint’s allegations were right, it does not even pose a viable threat for companies that did have a set process for assessing exemptions and did examine the sincerity of religious exemption.
A claim that “This settlement should also serve as a strong warning to employers across the nation that they cannot refuse to accommodate those with sincere religious objections to forced vaccination mandates,”
This is technically right, but not really relevant or a barrier for employers putting in place reasonable processes to examine sincerity and is not a barrier for refusing exemptions that seem non-sincere. And the existence of Novavax is going to make exemptions alleging the use of cell lines descended from fetal cells in mRNA vaccines (distant and weak as such use is, and bad an argument as it is even in that context a lot less relevant.
The problem is that hospitals may not notice these nuances and scared by the headlines, may conclude that they cannot police religious exemptions – something that this settlement does not mean. NorthShore itself practically agreed in the settlement to accept all exemption requests of the resigning or dismissed workers, even though with Novavax, their claims lose powers. On the plus side, 269 employees out of 17,000 are a trivial number, and not likely to have a huge effect. On the other hand, what happens when the next booster is due? The hospital does not have to automatically accept religious exemptions going forward but may hesitate to reject them.
If the hospital’s policy was blanket refusal after purporting to give a religious exemption, settling was likely the right choice; the hospital was unlikely to win its case. But this can be misused to intimidate others, including hospitals with better policies, and that’s a concern.