Lavelle-Hayden v. Employment Dept. ( 2023 )

490 June 22, 2023 No. 310
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Alison K. LAVELLE-HAYDEN,
Petitioner,
v.
EMPLOYMENT DEPARTMENT
and Legacy Good Samaritan
Hospital and Medical Center,
Respondents.
Employment Appeals Board
2021EAB1066; A177971
Argued and submitted April 19, 2023.
Ray D. Hacke argued the cause for petitioner. Also on the
briefs was Pacific Justice Institute.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent Employment Department. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Sophie Shaddy-Farnsworth argued the cause for respon-
dent Legacy Good Samaritan Hospital and Medical Center.
Also on the brief were Brenda K. Baumgart, Crystal S.
Chase, and Stoel Rives LLP.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Reversed and remanded.
Cite as 326 Or App 490 (2023) 491
492 Lavelle-Hayden v. Employment Dept.
TOOKEY, P. J.
Claimant seeks judicial review of an order of the
Employment Appeals Board (EAB) upholding employer
Legacy Good Samaritan Medical Center’s denial of her claim
for unemployment compensation after EAB determined that
claimant was disqualified under ORS 657.176(2) from receiv-
ing unemployment benefits because she was discharged
from her position as a respiratory therapist for misconduct
for having violated employer’s policy in refusing to receive a
COVID-19 vaccination. Claimant raises four assignments of
error. Each of them is premised in part on claimant’s view
that EAB’s order violated claimant’s rights, either under the
First Amendment or because claimant’s action in refusing to
be vaccinated was based on a sincerely held religious belief
that employer had an obligation to accommodate under Title
VII of the Civil Rights Act of 1964, 42 USC sections 2000e
to 2000e-17. In reviewing EAB’s findings for substantial evi-
dence in the record and its legal conclusions for errors of law,
ORS 183.482(8); Marella v. Employment Dept., 223 Or App
121, 123, 194 P3d 849 (2008), we conclude that EAB’s order
must be reversed and remanded for reconsideration.
The facts are undisputed. Claimant worked for
employer as a respiratory therapist. Claimant worked
with many COVID-19 patients until she was discharged
from her employment in October 2021. She complied with
all of employer’s protocols for protective gear and personal
hygiene; however, she declined to be vaccinated, as required
by employer’s policy and an administrative rule adopted by
the Oregon Health Authority (OHA), OAR 333-019-1010(1)
(Sept 1, 2021).1
1
OAR 333-019-1010(1) (Sept 1, 2021) provides:
“It is vital to this state that healthcare providers and healthcare staff be
vaccinated against COVID-19. COVID-19 undergoes frequent mutations as
it replicates, which over time has resulted in variants that are more trans-
missible or cause more severe disease. As of the time this rule was adopted,
Delta was the variant making up more than 98 percent of sequenced speci-
mens in Oregon. The Delta variant is approximately two to three times more
infectious than early wild-type COVID-19 variants. There is emerging evi-
dence that people infected with the Delta variant have similar viral loads
regardless of vaccination status suggesting that even vaccine breakthrough
cases may transmit this variant effectively. Being vaccinated, is therefore
critical to prevent spread of Delta. Healthcare providers and healthcare staff
have contact with multiple patients over the course of a typical day and week,
Cite as 326 Or App 490 (2023) 493
OAR 333-019-1010 (2021) included a provision
allowing employers to grant exemptions to those workers
whose sincere religious convictions prevented them from
receiving a COVID-19 vaccine. OAR 333-019-1010(3), (4)
(2021).2 Claimant describes herself as a religious person.
including providers that provide care for people in their homes. Individuals
cared for in these settings are more likely than the general public to have con-
ditions that put them at risk for complications due to COVID-19. COVID-19
variants are running through the state’s unvaccinated population and caus-
ing an increase in breakthrough cases for those who are fully vaccinated.
This rule is necessary to help control COVID-19, protect patients, and to
protect the state’s healthcare workforce.”
2
OAR 333-019-1010(3) (2021) provided:
“After October 18, 2021:
“(a) A health care provider or healthcare staff person may not work,
learn, study, assist, observe, or volunteer in a healthcare setting unless they
are fully vaccinated or have provided documentation of a medical or religious
exception.
“(b) An employer of healthcare providers or healthcare staff, a contrac-
tor, or a responsible party may not employ, contract with, or accept the vol-
unteer services of healthcare providers or healthcare staff persons who are
working, learning, studying, assisting, observing or volunteering at a health-
care setting unless the healthcare providers or healthcare staff persons are
fully vaccinated against COVID-19 or have a documented medical or reli-
gious exception.”
OAR 333-019-1010(4) (2021) provided:
“On or before October 18, 2021, healthcare providers and healthcare staff
must provide their employer, contractor or responsible party with either:
“(a) Proof of vaccination showing they are fully vaccinated; or
“(b) Documentation of a medical or religious exception.
“(A) A medical exception must be corroborated by a document signed by
a medical provider, who is not the individual seeking the exception, on a form
prescribed by the Oregon Health Authority (OHA) or a similar form that con-
tains all of the information required in the OHA form, certifying that the
individual has a physical or mental impairment that limits the individual’s
ability to receive a COVID-19 vaccination based on a specified medical diag-
nosis, and that specifies whether the impairment is temporary in nature or
permanent.
“(B) A religious exception must be corroborated by a document, on a
form prescribed by the Oregon Health Authority (OHA) or a similar form
that contains all of the information required in the OHA form, signed by the
individual stating that the individual is requesting an exception from the
COVID-19 vaccination requirement on the basis of a sincerely held religious
belief and including a statement describing the way in which the vaccination
requirement conflicts with the religious observance, practice, or belief of the
individual.”
OAR 333-019-1010(5)(b) (2021) provided that nothing in the rule was intended
to prevent healthcare facilities from “[h]aving more restrictive or additional
requirements.”
494 Lavelle-Hayden v. Employment Dept.
When she obtained information that led her to believe that
the available vaccines had been developed with the use of
aborted fetuses, she concluded that her sincerely held reli-
gious beliefs would not allow her to be vaccinated, and she
sought a religious exemption.
Employer required claimant to complete a form
requesting an exemption from the vaccination require-
ment. Employer instructed employees requesting a reli-
gious exception to attach a signed letter from a religious
authority in the employee’s faith community “explaining
how administration of the COVID-19 vaccine conflicts with
bona-fide religious tenets or practices of your faith.”3 If the
employee did not have a religious authority, employer autho-
rized the employee to submit their own letter containing the
same information. Employer’s policy required the request
for exemption to be specific about the “bona-fide” religious
belief and advised employees that a “general philosophical
or moral objection to the vaccine will not be sufficient for
[employer] to evaluate the request or grant an exemption.”
Claimant’s church declined to provide documenta-
tion in support of claimant’s request for exemption, so claim-
ant submitted a letter describing her religious beliefs that
required her to decline to be vaccinated:
“According to my Christian faith, I believe my body is a
temple of the Holy Spirit and it is a personal responsibil-
ity for me to protect my body’s physical integrity against
unethical and harmful ingredients and injections.
“* * * I believe that life is precious and a gift and I per-
sonally do not believe in abortion. Stem cells from aborted
fetuses are used in testing of the vaccines or are in the
vaccines themselves. I cannot in good conscience take these
vaccines knowing that the creation or contents of the vac-
cines go against my personal and religious beliefs.”
3
We note that, although employer’s policy referred to a “bona-fide religious
tenet,” which appears to be the judicially established standard under Title VII,
Heller v. EBB Auto Co., 8 F3d 1433, 1438 (9th Cir 1993), OAR 333-019-1010(4)
(2021) refers to an exemption based on “a sincerely held religious belief.” The
parties do not address that distinction or propose that it makes any substantive
difference to our analysis and they use the terms interchangeably. In this opin-
ion, we use both terms, depending on context.
Cite as 326 Or App 490 (2023) 495
Employer had established a committee to review
religious exemption requests based on two criteria: (1) con-
sistency (i.e., whether the employee had recently received
other vaccines), and (2) specificity (i.e., whether the employee
clearly stated their religious belief, and that the religious
belief is specifically against receiving the COVID-19
vaccine).
Employer determined that claimant did not meet
its criteria for a religious exemption and rejected claimant’s
request for an exemption. Employer offered claimant the
choice of receiving the vaccination, being placed on admin-
istrative leave and then terminated from employment,
or resigning. Claimant chose to be terminated from her
employment.
When claimant filed a claim for unemployment ben-
efit, employer rejected the claim based on misconduct. The
Employment Department issued an administrative decision
upholding employer’s denial, explaining that, in failing to
comply with employer’s reasonable vaccination policy, claim-
ant had violated standards of behavior that an employer had
a right to expect and had thereby engaged in misconduct. At
a hearing, claimant described her reasons for declining to
be vaccinated:
“I am a Christian who believes in God and live by the
words in the Bible. So I believe the Bible says we are not
permitted to treat the body in a way we believe will harm
it. So according to my faith and beliefs, we are created
in God’s image. I believe my body is a temple and it’s my
personal responsibility to protect my integrity of my body
against toxins and harmful things.”
Claimant testified that she had taken vaccines when she
was a child, but had not been vaccinated more recently and
that, as she got older, she felt her “religious and personal
beliefs have grown, and I’m more aware of what I put into
my body.” Claimant explained that she had declined to get
flu shots each year for religious reasons and that employer
had allowed that. Claimant also described her view that,
compared to other vaccines that she had taken in the past,
she felt that the COVID-19 vaccine had been rushed, “was
more in the news a lot[,]” and that “it was being forced on
496 Lavelle-Hayden v. Employment Dept.
people.” Claimant added that “the use of fetal cells in the
development, research, and production, it’s just some of
those things that I don’t condone and don’t feel deep down
that are right.”
An administrative law judge (ALJ) found that
claimant’s explanation expressed more of a general philo-
sophical or moral objection than a specific explanation of
how her religious beliefs would be violated. The ALJ noted
that the fact that claimant’s church had declined to provide
a letter supported an inference “that the church did not con-
sider taking the vaccine to be a violation of any religious
practice or tenet of faith.” The ALJ concluded that “[o]n this
record, claimant has not shown that she was entitled to an
exemption from the vaccine requirement on the basis of a
bona-fide religious belief” and upheld employer’s determina-
tion that claimant had been discharged for misconduct.
EAB affirmed the ALJ’s order and upheld the
department’s denial. EAB acknowledged that claimant had
sought a religious exemption but reasoned that employer had
adopted a reasonable and objective neutral policy and proce-
dure for determining whether to grant a religious exemption
and, after it denied claimant’s request, employer reasonably
expected that claimant would comply with the vaccination
policy. Because claimant had willfully violated employer’s
reasonable policy, EAB reasoned, she was discharged for
misconduct and therefore was disqualified from receiving
benefits. EAB did not address claimant’s contention that the
ALJ had erred in determining that claimant did not hold a
bona-fide religious belief.
On judicial review, claimant contends that EAB
erred in upholding the department’s denial of benefits. Each
of claimant’s assignments depend on her contention that her
refusal to get vaccinated could not be a basis for disquali-
fication, because her refusal was based on a sincerely held
religious belief that prevented her from getting vaccinated.
In her first assignment of error, claimant contends
that EAB erred in determining that she was discharged for
misconduct. Claimant contends that she was not discharged
for misconduct; rather, it was employer who engaged in
Cite as 326 Or App 490 (2023) 497
misconduct, by violating Title VII of the Civil Rights Act of
1964, in failing to accommodate claimant’s sincerely held
religious belief. In her second assignment, claimant con-
tends that, in upholding employer’s denial of benefits, EAB
unconstitutionally lent its support to “one side” of a religious
controversy rather than maintaining neutrality, as consti-
tutionally required. In her third assignment, claimant con-
tends that EAB violated her constitutional rights by condi-
tioning her exemption based on a sincerely held religious
belief on a letter from her church. In her fourth assignment,
claimant contends that EAB violated her constitutional
rights in finding that she was fired for misconduct based on
her refusal to violate a sincerely held religious conviction.
First assignment of error
As noted, in her first assignment of error, claimant
contends that EAB erred in determining that she was dis-
charged for misconduct, because employer’s determination
to discharge her ran afoul of Title VII of the Civil Rights
Act of 1964. We reject claimant’s contention. ORS 657.176(2)
requires disqualification from unemployment benefits if the
employer discharges a claimant for “misconduct connected
with work.” “Misconduct connected with work” includes “a
willful or wantonly negligent violation of the standards of
behavior which an employer has the right to expect of an
employee.” OAR 471-030-0038(3)(a). It is undisputed that
claimant was discharged because she refused to comply
with employer’s vaccination requirement, which EAB deter-
mined was a reasonable policy. EAB determined that that
was misconduct.
Title VII provides:
“It shall be an unlawful employment practice for an
employer—
“(1) to fail or refuse to hire or to discharge any indi-
vidual, or otherwise to discriminate against any individ-
ual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.”
Claimant does not contend that this is a claim under Title
VII; she contends only that the analysis applicable to a
498 Lavelle-Hayden v. Employment Dept.
claim under Title VII should apply in determining whether
she was discharged for misconduct. As the Supreme Court
held in Heller v. Ebb Auto Co., 308 Or 1, 7, 774 P2d 1089(1989), an administrative proceeding relating to the denial
of unemployment compensation benefits for misconduct is
not an employment discrimination claim under Title VII.
Rather, the analysis that bears on the the constitutional
implication of a denial of unemployment benefits based on
misconduct is whether the agency’s order runs afoul of the
First Amendment. See, e.g., Sherbert v. Verner, 374 US 398,
403, 83 S Ct 1790, 1793, 10 L Ed 2d 965 (1963) (holding
that the denial of unemployment benefits can violate the
Free Exercise Clause in cases where the claimants refused
or resigned from jobs that conflicted with their religious
beliefs). Because claimant’s contentions in her first assign-
ment of error challenging EAB’s determination that she was
discharged for misconduct are based entirely on Title VII,
we reject them.
Remaining assignments of error
Claimant’s remaining assignments challenge the
denial of unemployment compensation on constitutional
grounds, contending that her refusal to be vaccinated could
not be a basis for disqualification, because her refusal was
based on a sincerely held religious belief. As the department
acknowledges, under the Free Exercise Clause of the First
Amendment, a state generally cannot deny unemployment
benefits to a worker if the misconduct forming the basis for
the discharge from employment was the result of the worker
adhering to a sincerely held religious belief. Sherbert, 374
US at 403. The department correctly explains that, because
OAR 333-019-1010(4) (2021) specifically allows for a religious
exemption from vaccination, the state cannot condition the
receipt of unemployment benefits on a worker’s willingness
to be vaccinated if receiving the vaccine is, in fact, forbid-
den by the worker’s sincerely held religious beliefs.4 Thus,
4
We note that EAB relied on Employment Division v. Smith, 494 US 872, 881,
110 S Ct 1595, 108 L Ed 2d 876 (1990), as the “operative authority,” in support of
its conclusion that the state can deny unemployment benefits where the claimant
was discharged for violating a “valid and neutral law of general applicability,”
even if the claimant violated the law as a matter of sincere religious conviction.
However, as the department acknowledges, Smith is inapposite, because, in view
Cite as 326 Or App 490 (2023) 499
whether claimant was properly disqualified from unem-
ployment benefits in this case turns on the factual question
whether claimant’s refusal to comply with employer’s vac-
cine policy was the result of a sincerely held religious belief.
The board did not address that issue. Nor did it adopt the
ALJ’s finding that claimant did not have a “bona-fide” reli-
gious belief.
The department concedes that EAB’s failure to
make a factual determination regarding the sincerity of
claimant’s religious belief means that EAB’s order is not
supported by substantial reason, and that the order must
be remanded for EAB to determine whether claimant has
established that she was unable to comply with employer’s
vaccination policy because of a sincerely held religious belief.
We agree and accept the concession, and that concession
obviates the need to address the remaining assignments.
The department asserts that substantial evidence
in the record would support the ALJ’s finding that claimant
did not have a sincerely held religious belief that prevented
her from being vaccinated. That is an issue that the board
can consider in the first instance on remand.
Reversed and remanded.
of the religious exemption provided by OAR 333-019-1010(4) (2021), this case
does not involve the violation of a “neutral law of general applicability.” Thus,
the department concedes, it is not the rule from Smith but rather the test from
Sherbert that governs. Under that test, if a person was, in fact, unable to get the
COVID vaccine because of a sincerely held religious belief, and was terminated
as a result, Oregon could not deny unemployment benefits to that person absent
a “compelling government interest” in doing so.