The United States Court of Appeals for the Ninth Circuit building is seen February 6, 2017 in San Francisco, California. (Justin Sullivan/Getty Images)
After an appeals court ruled that San Francisco must rehire two employees who left their jobs after refusing the COVID-19 vaccine, one law professor says the decision reflects a “concerning” increase in the burden on employers to deny exception requests.
A three-judge panel of the 9th U.S. Circuit Court of Appeals decided last week that Selina Keene and Melody Fountila, two former employees in the human resources department who retired after being denied religious exemptions to the city’s vaccination policy, should be rehired. The decision reversed a ruling by U.S. District Judge Jeffrey White of Oakland, who had dismissed the women’s lawsuit.
The judges said the city forced the women to “choose between their religious beliefs and their careers,” which made them feel “distraught” and “depressed,” according to the decision.
Dorit Reiss, a UC Law San Francisco professor, said the panel’s decision will make it harder for employers to remove workers if they choose to fight their termination in court.
“Pretty much every employee that’s dismissed for violating a workplace rule is going to be distraught,” she told KQED. “In saying that that’s irreparable harm, you’re going to make it really hard for employers to dismiss employees where litigation is going on.”
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Reiss said that the move follows other legal decisions since 2020 that have strengthened religious freedom for workers. Since the COVID-19 pandemic broke out, she said some courts had required employers to accept what she called more “problematic” religious objections to vaccines and, in some cases, testing and masking.
In 2023, the Supreme Court also raised the bar for employers to deny employees religious exemption requests, deciding that employees must be accommodated unless doing so “would result in substantial increased costs.”
“It used to be thought that if you have even minimal costs, you don’t have to give religious exemptions,” Reiss said. “Now it’s harder not to give accommodations.”
Based on that case, Groff v. DeJoy, 9th Circuit Judges Consuelo Callahan and Patrick Bumatay, along with U.S. District Judge Susan Bolton, wrote that San Francisco failed to demonstrate that allowing Keene and Fountila to work remotely or in person with proper protective equipment would significantly burden the city. The women had requested medical exemptions because they claimed the COVID vaccines “were derived from stem cells from aborted fetuses,” which was in contradiction to their Christian faith.
“The record does not reflect that [San Francisco] seriously considered any religious accommodation,” the decision reads. The city “has failed to show these proposed measures imposed an ‘undue hardship’ given their minimal cost and considering that during the relevant time period, [Keene and Fountila’s] worksite hosted thousands of appointments with members of the public, regardless of their vaccination status.”
A man receives both a flu and COVID-19 vaccine at a CVS in August 2024. (Christina House / Los Angeles Times via Getty Images)
The city attorney’s office said it was disappointed by the ruling and would be “evaluating any potential next steps” in a statement.
Reiss said that the city has three options: to let the decision stand and continue litigation, hoping to win the case on its merits; request a full 9th Circuit review; or appeal to the Supreme Court.
Appealing to the Supreme Court seems unlikely, given its shift to place more of a burden on employers to deny religious exemptions.
The case could also be made more difficult because the city repealed its vaccine mandate in August 2023. The panel of judges said that without any requirement in place, Keene and Fountila’s decision not to be vaccinated poses no burden if they return to work.
Reiss also said that looking at the pandemic after the fact offers a perspective to the judges that San Francisco didn’t have when making its decision to not grant vaccine exceptions to hundreds of city employees in 2021.
“Both federal law and California law protect the religious freedom of workers and the right to get accommodation if they have religious objection to a workplace rule, but it’s always a balancing act,” Reiss said.
“This is being done in hindsight,” she continued. “The City of San Francisco had to make the decision in the middle of a pandemic, and I think the court didn’t give a lot of weight to the fact that during the pandemic, the weight of allowing unvaccinated employees to continue working was pretty high.”
