As Flu Season Surges, Fourth Circuit Offers Guidance on Vaccine Mandate Litigation

Quick Hits

• The U.S. Court of Appeals for the Fourth Circuit reiterated that a low bar exists for asserting a religious discrimination claim at the pleading stage of a Title VII case.
• The court held it was not a violation of the ADA for an employer to ask about an employee’s vaccination status.
• An employee’s vaccination status does not support a “regarded as” disabled claim under the ADA in the Fourth Circuit.

Background

Like many employers in the midst of the COVID-19 pandemic, the Humane Society of the United States implemented a company-wide vaccine mandate applicable to all employees, including those working remotely. Employees were discharged from employment for noncompliance with the mandate unless they were approved for a medical or religious exemption. Two remote employees sought religious exemptions but were denied, and subsequently, their employment was terminated. They then filed suit, alleging religious discrimination under Title VII and violations of their rights under the ADA.

The U.S. District Court for the District of Maryland dismissed the employees’ claims, finding that they had not sufficiently articulated their religious beliefs and that the ADA did not offer any protections based on vaccination status. This appeal followed.

Legal Framework Under Title VII and the ADA

Title VII prohibits an employer from discharging or otherwise discriminating against an employee because of religion, which includes all aspects of religious observance, practice, and belief, unless the employer demonstrates that accommodating the employee’s religious observance or practice will result in undue hardship to the conduct of the employer’s business.

The Fourth Circuit has held that a plaintiff asserting a claim for denial of a religious exemption from vaccination must sufficiently allege that (1) the plaintiff’s belief is an essential part of a religious faith, and (2) the belief is plausibly connected to the plaintiff’s refusal to be vaccinated. In a prior case, the court emphasized that a religious belief need not be tied to a particular religion or tenet, and that courts should avoid second-guessing the plausibility or sincerity of a religious belief at the pleading stage.

The ADA prohibits discrimination by an employer against an employee “on the basis of disability,” which includes “a physical or mental impairment that substantially limits one or more major life activities of [the] individual,” as well as the employee’s “being regarded as” disabled by the employer. “Major life activities” are defined by the ADA’s regulations to include major bodily functions, as well as activities such as “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” The ADA further bars disability-related inquiries unless such inquiries are “job-related and consistent with business necessity.”

The Court’s Opinion

The Fourth Circuit Court of Appeals vacated the dismissal of the employees’ Title VII religious discrimination claims, but it upheld the dismissal of their ADA claims. In its opinion, the court made the following key rulings:

• A broad standard applies to religious discrimination claims at the pleading stage. The court agreed with its sister circuit courts of appeals that at the pleading stage, a plaintiff/former employee “needn’t explain ‘how any particular tenet or principle of her religion prohibited vaccination’”; rather, the plaintiff must “plausibly allege that her refusal to be vaccinated derives from an aspect of her religious practices or beliefs.” Because the complaint plausibly alleged that the plaintiffs’ refusal to be vaccinated stemmed from some aspect of their religious beliefs, their claims survived dismissal—at this stage of proceedings. The court noted that whether the asserted religious beliefs were sincere and whether an accommodation would “create an ‘undue hardship on the conduct of the employer’s business’” were arguments to be addressed at a later stage of the case.
• “[A]n employer’s inquiry into an employee’s vaccination status isn’t a disability-related inquiry.” In making this statement, the court explained that “[w]hether a person is vaccinated has no bearing on her ability to engage in major life activities,” such as those identified in the ADA regulations.
• “[B]eing unvaccinated isn’t a physical or mental impairment,” the court reiterated. Accordingly, the plaintiffs’ vaccination status could not support a “regarded as” disabled claim under the ADA.

Takeaways for Employers

This case offers several key considerations for employers in the Fourth Circuit.

• In the context of vaccination mandates, courts will allow Title VII religious accommodation claims to proceed past the pleading stage when employees allege that their religious beliefs are plausibly connected to their refusal to be vaccinated, even without citation to specific religious tenets prohibiting vaccination.
• An employer’s inquiry about an employee’s vaccination status is not considered a medical inquiry under the ADA, and the ADA does not prohibit an employer from asking that question.
• The Finn court found that vaccination status was not a disability under the ADA.

In addition, to reduce the risk of vaccination-mandate–related claims, employers should consider implementing robust interactive process protocols to receive and consider medical or religious exemption requests. Engaging in the interactive process requires an employer to make an individualized assessment of an employee’s request(s) for accommodation, and to meaningfully engage with the employee to determine whether an accommodation—but not necessarily the employee’s requested accommodation—can be made.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the COVID-19/Coronavirus, Employment Law, Leaves of Absence, and State Developments blogs as additional information becomes available.

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