The Volokh Conspiracy
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From In re Whitehead (N.J. Office of Admin. L.), decided Sept. 1 by Administrative Law Judge Julio Morejon, and adopted Oct. 6 by the Civil Service Commission, but just posted on Westlaw:
Appellant, Carolyn Whitehead … was employed by respondent, City of East Orange, … as a Keyboarding Clerk I & Assistant Zoning Officer. On July 23, 2020, Whitehead was terminated from her employment for failure to take a COVID-19 test as a condition to return to work. Whitehead appeals East Orange's decision….
Whitehead claims that her rights under Title VII of the Civil Rights Act were violated by East Orange when it refused to provide her "reasonable accommodations" for her sincerely held religious belief that her faith in God "will protect her from COVID-19 so there is no reason to take a test," as she stated in oral argument….
According to Title VII, reasonable accommodations are adjustments/modifications provided by the employer to enable those with sincerely held religious beliefs that conflict with work requirements to enjoy equal employment opportunities, provided said accommodations do not impose undue hardship on the employer. According to the EEOC, an undue hardship is an accommodation that is too costly, compromises workplace safety, infringes on the rights of other employees, decreases workplace efficiency, infringes on the rights of other employees, or requires employees to do more than their fair share of burdensome or hazardous work. The Supreme Court has held that if an employer must bear more than a "de minimis" (minor) burden when making religious accommodations, the accommodations are considered undue hardships….
In the present case, Whitehead argues that she should be allowed to work from home as East Oranges allows at risk employees to remain working from home until they can return to work. Whitehead argues that according to East Orange's "Return To Work Policy," East Orange has already implemented "staggered schedules" and office reconfigurations. Whitehead argues further that East Orange also allows high risk employees to work from home. Whitehead states that her four-month period of working from home during the partial work suspension was successful as she was able to successfully perform her duties from home four-days each week.
East Orange argues that Whitehead's refusal to be tested creates an undue hardship because it risks exposing their low-risk employees to COVID-19 in the office which could create an outbreak and shut down the office again. East Orange argues further that said employees could then also expose high-risk individuals outside of work…. [I]t is unreasonable to expect East Orange to mandate those high-risk employees to stay at home so Whitehead can come into to work, which is no guarantee that Whitehead could transmit COVID-19 to low-risk employees simply by being at the office. Even if Whitehead could guarantee that she would remain in a full quarantine before returning to the office, there is no way of knowing definitively that she poses no risk to her fellow employees without a test….
Whitehead argues that the test is an unreasonable search and is not justified at its inception because there is not sufficient individualized suspicion to justify a search…. The Court held in Skinner v. Ry. Labor Executives' Ass'n (1989) that drug and alcohol tests for railroad employees, mandated by Federal Railroad Administration ("FRA"), constituted a search under the fourth amendment. These tests involved breathalyzer tests and gathering samples of employee's blood and urine for chemical analysis which intrudes upon traditional expectations of privacy. This regulation was put in place following a large amount of railroad accidents that were caused by employees being intoxicated while on the job. The Court held that such intrusions, whether they involved reasonable individual suspicion or not, were permissible because of the government's compelling interest in preventing deadly railroad accidents.
Similarly, in the present case, preventing the spread of COVID-19 to East Orange employees while they are in the office could be considered a compelling government interest. Viral testing is a crucial means to that end…. And requiring individualized suspicion to conduct these tests would jeopardize the government's interest because many carriers of the virus are asymptomatic, and the only way to know they are infected is to test them….
Whitehead alleges that East Orange's testing requirement violates her rights under the Free Exercise Clause ….. However, this clause does not relieve an individual from complying with a generally applicable and facially neutral law because said law violates their religious prescriptions. Employment Div. v. Smith (1990)…. In the present case, East Orange's testing mandate is facially neutral and generally applicable as it makes no mention of religion and is meant to apply to all employees. Also, there is no evidence to suggest the mandate is being enforced disproportionately against Whitehead nor those who share her religious beliefs….
I say, that and, "Trust in Allah, but tie your camel."