As the COVID-19 vaccine becomes more readily available, employers are considering mandatory vaccination for their employees and in particular, how to respond to employee requests for accommodation, whether on the basis of disability or religion. In Horvath v. City of Leander, the U.S. Court of Appeals for the Fifth Circuit recently considered an employer’s proposed accommodations to a firefighter who refused a mandatory tetanus, diphtheria, and pertussis (TDAP) vaccine for religious reasons, and its analysis now provides timely guidance to employers considering a different type of mandatory vaccine.
Brett Horvath sued the City of Leander, Texas, and Bill Gardner (individually and in his capacity as fire chief), alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act, related to his request for an accommodation and subsequent termination. Horvath, who worked as a firefighter and driver/pump operator for the city’s fire department, requested a religious accommodation, exempting him from the fire department’s requirement that all employees obtain the TDAP vaccine. Horvath is an ordained minister and objected to vaccinations as part of his religion.
The fire department offered Horvath a choice of two accommodations: (1) reassignment to another position that “offered the same pay and benefits” but did not require a vaccination; or (2) “remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases when his health condition justified, and keep a log of his temperature.” Horvath declined the transfer, and proposed an alternative accommodation where he would wear a respirator only “when encountering patients who were coughing or had a history of communicable illness.” However, Chief Gardner refused to negotiate the terms of the proposed accommodation that would enable Horvath to remain in his current role without the TDAP vaccine and asked Horvath to decide between the two options originally presented. Horvath rejected both.
Chief Gardner requested an internal investigation to determine whether Horvath’s refusal to select one of the two proposed accommodations was a violation of his directive, and therefore “constitute[ed] willful disobedience or deliberate refusal to obey a directive from a supervisor.” Following an investigation, the assistant fire chief concluded that Horvath “deliberately refused to obey a directive from a supervisor, which constituted insubordination in violation of the City’s Code of Conduct.” Consequently, Chief Gardner terminated Horvath’s employment.
The district court granted summary judgment in favor of the city and Chief Gardner, and Horvath appealed to the Fifth Circuit. On appeal, Horvath argued that the city’s offer to transfer him to another position that did not require the TDAP vaccine was not reasonable, as the other position was “less desirable,” and “the schedule would prevent his continuing his secondary employment running a construction company, which would reduce his total income by half.” In rejecting Horvath’s argument, the Fifth Circuit relied upon well-established jurisprudence that a “reasonable” accommodation does not need to be the employee’s preferred accommodation. The Fifth Circuit agreed with the district court that the city had satisfied its legal obligation to offer a reasonable accommodation and affirmed dismissal of Horvath’s religious discrimination claim.
The Fifth Circuit also affirmed dismissal of Horvath’s retaliation claim. According to the court, requesting an accommodation can form the basis for a retaliation claim, but causation was lacking. In this case, the city terminated Horvath’s employment—not for requesting an accommodation—but for being insubordinate in failing to choose one of the two accommodation options offered. The Fifth Circuit reasoned this was “a legitimate, non-discriminatory reason for the firing.”
The analysis in Horvath is instructive to employers that may be facing similar accommodation requests related to the COVID-19 vaccine. Importantly, the city promptly reviewed the accommodation request, identified reasonable accommodation options, and presented those to Horvath. The law does not require employers to adopt the employee’s requested or preferred accommodation, so long as they offer accommodations that are reasonable and effective. Moreover, employers are not without recourse when an employee fails to accept a reasonable—even if personally undesirable—accommodation.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
