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Religion and the Law

Court Reverses Denial of Unemployment Compensation to Employee Fired for Religious Objection to Vaccination


From Washa v. Actalent Scientific, LLC, decided two weeks ago by Minnesota Court of Appeals Chief Judge Susan Segal and Judges Peter Reyes and Randall Slieter, but just posted on Westlaw:

Actalent Scientific employed Washa and placed him as a medical lab technician with North Memorial Clinics. On January 3, 2022, North Memorial terminated Washa's assignment because he refused to obtain a COVID-19 vaccination as required by North Memorial's policies. Washa had requested an exemption from the vaccine requirement, but it was denied….

Washa was denied unemployment benefits, administratively appealed, and participated in a hearing before the ULJ [unemployment law judge]. When the ULJ asked Washa about his reasons for refusing the COVID-19 vaccine, Washa testified:

[I]t's a matter of not wanting to be defiled. It's like the God that actually comes, like, has a spot in me, and I need to keep the spot good, otherwise he's not as able to enter as well, where ultimately I could go to hell over it. But it's a matter of purity of a person's body. Body is a temple type belief.

Washa testified that he had not received any vaccines for the past 15 years. Washa testified that his beliefs derive from the Bible and that he attends a Bible study with a group of friends about once every two weeks to "go over the Bible in different ways." …

The ULJ issued a final decision determining that Washa had committed employment misconduct by failing to comply with the vaccination mandate, that his refusal of the vaccine was not based on sincerely held religious beliefs, and that he was therefore ineligible for benefits. The ULJ found: "Although Washa is a religious person, his testimony shows that it is more likely than not that his concerns about taking the Covid-19 vaccine are based on secular concerns about his perceived health risks of taking the vaccine, and not a sincerely held religious belief." …

An applicant is ineligible for unemployment benefits if he was discharged because of employment misconduct. Employment misconduct is defined as "any intentional, negligent, or indifferent conduct, on the job or off the job, that is a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee." "[A]n employee's decision to violate knowingly a reasonable policy of the employer is misconduct." But even when the definition of employment misconduct is satisfied, a decision denying unemployment benefits may be subject to reversal if it violates constitutional rights. Minn. Stat. § 268.105, subd. 7(d)(1)….

A decision denying unemployment benefits infringes an applicant's free-exercise rights under the First Amendment if the applicant was forced to choose between his sincerely held religious beliefs and his employment. [This goes back to the Supreme Court's decision in Sherbert v. Verner (1963). -EV] Such an infringement is subject to strict scrutiny and thus can only be sustained upon demonstration that it is the least-restrictive means to meet a compelling government interest….

Washa did not testify that he refused the vaccine because of safety concerns. Instead, he testified to concerns about "not wanting to be defiled" so that God … [can] enter" and he can avoid "go[ing] to hell over it." He also testified to his consistent refusal of any vaccines over the past 15 years. The record in this case is distinguishable from others in which we have affirmed ULJ findings that vaccine refusals were not based on sincerely held religious beliefs. See Logue v. Olympus Am., Inc. (Minn. App. 2022) (concluding ULJ's finding was supported by substantial evidence because relator "directly questioned the safety of the vaccines" and stated that she was unwilling to take vaccine "right now" but intended to reevaluate her decision based on subsequent studies); Potter v. St. Joseph's Med. Ctr. (Minn. App. 2018) (concluding ULJ's finding was supported by substantial evidence because relator testified to receiving other vaccinations that she perceived to be effective and testified that, "if the flu shot was scientifically proven to be effective she 'probably would' receive it")….

Because substantial evidence does not support the ULJ's finding that Washa's refusal of the vaccine was based on safety concerns rather than religious beliefs, we reverse the ULJ's decision determining Washa was ineligible for unemployment benefits.

And from an opinion (Quarnstrom v. Berkley Risk Administrators Company, LLC) about a similar issue released the same day by Chief Judge Segal, though this one was joined by Judge Judges Theodora Karin Gaïtas and Sarah I. Wheelock:

The ULJ found that Quarnstrom's reasons for refusing the COVID-19 vaccine were personal rather than religious, but some of the ULJ's reasoning appears to be based on a misapprehension about the nature of free-exercise rights. The ULJ reasoned that Quarnstrom's reasons for refusing the COVID-19 vaccine were not based on sincerely held religious beliefs because she did not cite to particular passages in the Bible, had not been instructed by a religious advisor to refuse the vaccine, and conceded that other members of her congregation could, consistent with their faith, choose to get a vaccine. But "the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect." The ULJ erred by relying on the variability of beliefs within Quarnstrom's congregation as a basis for finding that she was not motivated by sincerely held religious beliefs….

Other parts of the ULJ's reasoning are based on permissible evaluations of Quarnstrom's credibility. The ULJ found that Quarnstrom's objection to the seasonal flu vaccine is not based on religious beliefs or practices but instead on an overall sense that she is in good health and does not need to be vaccinated and that she believes the COVID-19 vaccines are unsafe and ineffective. These findings are similar to those made by ULJs in cases where we have affirmed the denial of unemployment benefits based on vaccine refusal in violation of employer policies….

Because the ULJ's decision is based at least in part on an erroneous legal analysis regarding free-exercise rights, we conclude that it is appropriate to remand this matter to the ULJ for a revised decision consistent with applicable precedent on this issue. The ULJ in its discretion may reopen the record.

UPDATE: There was also a third case, issued two days later, McConnell v. Federal Reserve Bank; Judge Slieter, joined by Judge Reyes, likewise concluded that the ULJ in that case wrongly found that applicant's beliefs were insufficiently religious:

Although McConnell testified to concerns regarding the safety of the COVID-19 vaccine, she repeatedly tied those concerns back to her faith. She testified that she did not contact her doctor about her concerns because it was more of a "spiritual thing" and "religious belief." And she testified that, although she believes in some medical interventions, she "prayerfully consider[s] things." The ULJ found McConnell's testimony regarding safety concerns credible and rejected her testimony regarding her religious beliefs as not credible. "When the credibility of a witness testifying in a hearing has a significant effect on the outcome of a decision, the unemployment law judge must set out the reason for crediting or discrediting that testimony." The ULJ offered no reason for crediting only part of McConnell's testimony, and we can discern none. Moreover, although not dispositive, we are mindful that FRB interviewed McConnell and determined that McConnell's refusal of the vaccine was based on sincerely held religious beliefs.

Chief Judge Segal dissented:

The record here contains substantial evidence supporting the ULJ's credibility determination. For example, in response to the ULJ's question about why her religious beliefs prevented her from the getting the COVID-19 vaccine, McConnell testified that it was "[b]ecause the COVID vaccine was in its early stages, and it's not tested. The health risk associated with it from my … demographic seemed like [a] risk I cannot take." She acknowledged that she has no religious objection to vaccines in general and that she received a tetanus vaccine in 2021. McConnell explained that she took the tetanus vaccine because "the tetanus shot has been around for a hundred years, and there's … plenty of public data, and history to back up its validity whereas the COVID-19 one is fairly new. Just this last year."

McConnell testified that part of her concern over the vaccine was the possible side effects. She testified that she did research online and spoke with a medical professional about the safety of the vaccine. McConnell also noted that her grandmother had had a
stroke after receiving a COVID-19 booster. She noted that, ultimately,

as a 27-year-old healthy female that getting COVID versus getting the shot that has possible side effects [of] stroke, heart attacks, blood clots, I just felt … I'd take my chances with COVID over the possible side effect[s from the vaccine]. Of course, I don't believe it is fully natural either.

With regard to her religious beliefs, McConnell testified that she will pray about everything she does and characterized her reasons for not trusting the COVID-19 vaccine as "more of a spiritual thing. Like a religious belief." This type of testimony can support a conclusion that McConnell's motivation for refusing the COVID-19 vaccine was mixed, including both secular and religious reasons. My issue with that  approach, however, is that the ULJ made a credibility determination that McConnell's reasons for refusing the vaccine were secular, not religious. Rightly or wrongly, First Amendment jurisprudence leaves to the fact-finder the task of determining whether an action is the result of a sincerely held religious belief and we defer to findings of fact as long as they are supported by the record. To conclude otherwise would require that we accept—at face value—an employee's statement that they were motivated by a religious belief. While that might be a preferable approach from the standpoint of keeping the courts out of the business of trying to assess the sincerity of a person's religious beliefs, that is not the current legal standard.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer to McConnell.