The U.S. Court of Appeals for the Ninth Circuit has upheld a lower court ruling in favor of Snohomish Regional Fire and Rescue in a lawsuit filed in 2022 by eight firefighters who challenged the department’s denial of their requests for religious exemptions from the COVID-19 vaccine mandate.

In August 2021, Washington Governor Jay Inslee issued Proclamation 21-14 requiring healthcare providers, including firefighters with EMT or paramedic certifications, to be vaccinated against COVID-19 by October 2021. SRFR implemented the requirement and permitted employees to request religious exemptions. Forty-six of the department’s 192 firefighters sought exemptions, including the eight plaintiffs.

After reviewing the requests, SRFR concluded it could not accommodate unvaccinated firefighters without imposing an undue hardship. The department cited health and safety concerns for employees and the public, the high number of exemption requests, risks to operations from absences and outbreaks, potential loss of a Department of Corrections contract worth nearly $400,000 annually, and possible uninsured liability for COVID-19 transmission claims.

The firefighters proposed alternatives such as masking, regular testing, and social distancing. SRFR presented unrebutted expert medical testimony that these measures were insufficient substitutes for vaccination in the fire service environment. As an alternative, SRFR permitted employees to use accrued leave or take a one-year unpaid leave of absence, with the option of reinstatement if conditions changed. Several plaintiffs returned to work after restrictions eased in 2022.

The firefighters sued under Title VII of the Civil Rights Act and the Washington Law Against Discrimination, alleging failure to accommodate their religious beliefs. The district court granted summary judgment for SRFR, finding that accommodating the exemption requests would impose an undue hardship.

On appeal, the Ninth Circuit affirmed. The panel, applying the Supreme Court’s 2023 decision in Groff v. DeJoy, held that undue hardship under Title VII exists where accommodation would impose “substantial increased costs in relation to the conduct of the employer’s business.” Quoting from the decision:

• We… decline to scrutinize Plaintiffs’ religious beliefs and assume they have set forth a prima facie case.
• On appeal of summary judgment, that leaves us with one straightforward question: Whether the district court erred in concluding that SRFR could not reasonably accommodate Plaintiffs’ vaccine exemption requests without undue hardship.
• Title VII “requires employers to accommodate the religious practice of their employees unless doing so would impose an ‘undue hardship on the conduct of the employer’s business.'” Groff v. DeJoy, 600 U.S. 447, 453-54 (2023).
• In Groff, the Supreme Court clarified how lower courts should conduct the undue hardship analysis.
• The Court held that “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” The Court continued: [A] hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level. . . . [W]e are pointed toward something closer to . . . “substantial additional costs” or “substantial expenditures.”
• The Court counseled us to “apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of [an] employer,” to see if “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
• In the end, “‘undue hardship’ in Title VII means what it says,” and proof of hardship to the employer is not sufficient-the hardship must be undue.
• By way of example, the Court offered that “forcing other employees to work overtime would [not] constitute an undue hardship,” without considering other options such as “temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs.”
• SRFR identifies several different kinds of costs it would have faced had it allowed firefighters to work unvaccinated.
• For our purposes, we will group them into three categories: (1) health and safety costs, (2) operational burdens, and (3) financial burdens.
• We cannot judge SRFR by the responses taken by other fire departments.
• The reasonableness of others’ decisions is not before us. Nor can we judge SRFR with the clarity of hindsight or the benefit of post-pandemic debates over what measured responses frontline employers should have taken.
• We must consider the costs faced by SRFR in October 2021, not today.
• As Dr. Lynch explained, at the time the Governor issued the Proclamation, “COVID-19 cases were spiking due to the Delta variant despite other strategies in place.
• This was followed by the Omicron waves, which continued in this area into 2022.”
• The pandemic forced the State of Washington to make decisions quickly and with limited information.
• In so doing, SRFR relied on the scientific evidence and COVID data then available and acted in the best interests of the community.
• For reasons explained, we conclude that SRFR could not “reasonably accommodate” Plaintiffs’ proposed accommodation “without undue hardship on the conduct of” its business.
• The district court did not err in granting SRFR’s summary judgment motion and denying Plaintiffs’ motion.

Here is a copy of the decision: