St. Luke's University Hospital v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
St. Luke’s University Hospital, :
Petitioner :
:
v. : No. 1170 C.D. 2023
:
Unemployment Compensation : Submitted: September 9, 2024
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 1, 2024
St. Luke’s University Hospital (Employer) petitions for review of the
September 20, 2023 Order of the Unemployment Compensation Board of Review
(Board), which found Employer’s former employee, Christine Puello (Claimant),
eligible for benefits under Section 402(e)1 of the Unemployment Compensation Law
(Law), and reversed the decision of the Referee. Employer challenges the Board’s
determination that Claimant’s sincerely-held religious beliefs conflicted with
Employer’s COVID-19 nasal swab testing policy. After careful consideration, we
affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
I. Facts and Procedural History
Claimant began working for Employer as a part-time registered nurse on
August 6, 2001. In August of 2021, Employer notified all employees that they were
required to obtain a COVID-19 vaccination by September 25, 2021, or be approved for
a medical or religious exemption. Employer further advised that employees approved
for an exemption would be required to participate in weekly nasal swab testing for the
virus. Claimant applied for and was granted a religious exemption from the vaccination
requirement. In her August 20, 2021 application letter, Claimant explained that she is
a Christian, that she believes in the Bible, and that her spiritual beliefs are not
compatible with receiving the vaccine. (Reproduced Record (R.R.) at 139a.)
On October 4, 2021, Claimant informed Employer the nasal swab testing
was also incompatible with her religious beliefs and that she was unwilling to submit
to it. Specifically, Claimant explained:
I am writing this letter to inform [Employer] that after
long consideration I have decided to decline the COVID[-19]
nasal swab weekly testing. This decision is due to a conflict
with my sincerely held religious beliefs. Inserting a nasal
swab with contaminants into my body violates my
conscience and my sincerely held religious beliefs as I have
previously described in my religious exemptions. I am
willing to submit my saliva under observation for weekly
COVID[-19] testing which eliminates any invasiveness and
preserves my dignity of one less object/contaminant entering
my body.
(R.R. at 146a) (emphasis added).
Employer advised Claimant by letter that she was required to participate
in nasal swab testing and that it was the only reliable method of testing. (R.R. at 147a.)
On October 14, 2021, Employer discharged Claimant for her refusal to participate in
nasal swab testing.
2
Claimant filed for unemployment compensation (UC) benefits, but was
determined to be ineligible to receive them by the UC Service Center under Section
402(e)2 of the Law. Claimant appealed the Notice of Determination, and the Referee
held a hearing at which she testified:
[Q.] Okay. Specifically, why is it that you were unwilling in
the swab testing?
[A.] I was not willing to compromise the integrity of my
mucus membranes and most important my sincerely held
religious beliefs which is the integrity of my conscience and
my soul.
[Q.] And specifically, what does this belief prohibit in
relation to this testing?
[A.] It’s an invasive procedure with a foreign object –
possible foreign substances. That’s a violation of the
standard [inaudible] of my religion part of my relationship
with God.
[Q.] Okay. Do you participate in drug -- in -- did you
participate in any type of prior vaccinations?
[A.] I had religious exemptions since 2018 for the flu
vaccine and I do have a copy of that letter as well. They were
aware of it, and they also gave me an exemption for that as
well.
[Q.] Did you participate in any type of blood tests?
[A.] Not in a very long time.
2
Section 402(e) of the Law provides that “[a]n employe shall be ineligible for compensation
for any week . . . in which his unemployment is due to his discharge or temporary suspension from
work for willful misconduct connected with his work, irrespective of whether or not such work is
‘employment’ as defined in this act[.]” 43 P.S. § 802(e).
3
(R.R. at 131a) (emphasis added). With respect to alternative methods of COVID-19
testing, Claimant indicated:
[A.] Well, the [inaudible] information -- there’s a ton of
information out there that in May 2020 that Yale and Rutgers
had studies for saliva testing . . . there were reliable saliva
methods out here. There’s literature out there to back it up.
The [Centers for Disease Control] accepts saliva tests as well.
. . . There are also reported adverse events where people have
gotten the nasal swab, or the cotton swab stuck in their nose.
They went to an [ear, nose and throat doctor]. They thought
that they had gotten it all out. And there’s a part stuck in the
septum that had to go into surgical intervention. There are
nosebleeds are a big -- mild side effect. And some --there’s
a study where the patient broke through the mucus membrane
and had cerebral spinal which could lead to meningitis
leaking from her nose.
[Q.] Okay. So you have this correspondence with the
Employer, did you and you continued to indicate that you
were refusing to participate in the swab testing; is that right?
[A.] Yes.
(R.R. at 132a.)
The Referee issued his decision on June 10, 2022, in which he concluded
Claimant was ineligible for benefits under Section 402(e) of the Law. The Referee
explained:
In this case, the evidence shows that the employer
discharged the claimant after she failed to comply with a
directive to participate in weekly COVID-19 testing after
being approved for a religious exemption to the COVID-19
vaccination. The evidence shows that the employer notified
the claimant beginning on August 9, 2021, that employees
would be required to be vaccinated to maintain their
employment unless approved for an exemption. The Referee
4
finds it reasonable for the claimant to be required to be
vaccinated or participate in weekly testing due to the nature
of her employment, working with the public. The evidence
shows that the claimant was approved for a religious
exemption to the vaccination, however, the claimant refused
to participate in nasal swab testing for COVID-19. In
consideration of the testimony and evidence, the Referee
finds that the employer offered the claimant a reasonable
accommodation to her choice to avoid COVID-19
vaccinations for religious beliefs. The Referee finds that
claimant has failed to show reasonableness for refusing to
comply with the employer’s directive to participate in the
nasal swab testing for COVID-19. The Referee finds that the
employer has shown that the claimant was discharged for
insubordination, an act of willful misconduct in accordance
with the law.
(Employer’s Br., Ex. C at 76.)
Claimant appealed to the Board, which affirmed the Referee’s decision by
Order dated September 14, 2022. Claimant appealed to this Court, and on March 31,
2023, the Board requested, with Claimant’s consent, that we remand the case. The
Board averred that remand was necessary because “it would appear that the Board
misapplied the law in rendering its decision and now desires to review its determination
and issue a new decision, from which the aggrieved parties retain all appeal rights.”
(R.R. at 260a.) This Court remanded the case in accord with the Board’s request.
By Decision and Order mailed September 20, 2023, the Board vacated its
September 14, 2022 order, reversed the Referee’s June 10, 2022 decision, and deemed
Claimant eligible to receive UC benefits. In doing so, the Board relied on this Court’s
decision in Kaite v. Unemployment Compensation Board of Review, 175 A.3d 1132(Pa. Cmwlth. 2017), for the proposition that an “[employee’s] religious beliefs are
protected . . . [s]o long as there is sufficient evidence that [her] beliefs are sincerely
5
held . . . and conflict with the [employer’s] employment requirement, that is the end of
the matter.” Id. at 1137. The Boad explained its rationale as follows:
The claimant was granted a religious exemption from
obtaining the COVID-19 vaccine but was terminated for
refusing the nasal swab testing for the same reason. The
claimant credibly testified, “I was not willing to compromise
the integrity of my mucus membranes and most importantly
my sincerely held religious beliefs which is the integrity of
my conscience and my soul. It’s an invasive procedure with
a foreign object—possible foreign substances. That’s a
violation of the standard [inaudible] of my religion part of
my relationship with God.” Notably, the claimant has had a
religious exemption for the flu vaccine since 2018, does not
permit her blood to be taken, and offered an alternative
method of saliva testing, but the employer refused.
Based on the foregoing, the Board finds the claimant’s
belief against an invasive procedure with a foreign object to
be sincerely held and is religious in nature. While the
employer had every right to terminate the claimant’s
employment for failing to follow its policy, the Board cannot
find that the claimant committed willful misconduct such as
to deny her unemployment compensation benefits.
(Employer’s Br., Ex. A at 61.)
Employer filed a motion for reconsideration on October 5, 2023, in which
it discussed applicable caselaw and argued that the Board’s September 20, 2023
decision and reliance on Kaite was erroneous. (R.R. at 216a.) By order mailed October
20, 2023, the Board denied Employer’s motion for reconsideration and stated that its
order issued on September 20, 2023 stands as final. This appeal followed.3
3
“This Court’s standard of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are supported
by substantial evidence” Rivera v. Unemployment Compensation Board of Review, 310 A.3d 348,
352 n.4 (Pa. Cmwlth. 2024). In UC cases, the Board is the ultimate finder of fact and it resolves
(Footnote continued on next page…)
6
II. Issues
On appeal, Employer challenges the Board’s determination that Claimant
is eligible to receive UC benefits, where her refusal to submit to nasal swab testing for
COVID-19 amounted to willful misconduct. According to Employer, Claimant’s
objections to the testing requirement were based on medical and personal autonomy
concerns, rather than on any sincerely-held religious belief. (Employer’s Br., at 21-
49.) Employer additionally argues, from a procedural standpoint, that the Board erred
in failing to provide it with notice of its intention to reconsider and reverse its original
order, thereby depriving it of the opportunity to adequately present its position to the
Board. Id. at 50-54.
III. Discussion
A. Claimant’s Eligibility to Receive UC Benefits
As noted, Employer first contends that Claimant is disqualified from
receiving UC benefits where she failed to establish a sincerely held religious belief that
conflicted with the nasal swab testing requirement. Employer characterizes the
Board’s interpretation of this Court’s holding in Kaite as oversimplistic, in that it
accepted Claimant’s unsupported claims regarding her religious beliefs at face value.
Pursuant to Section 402(e) of the Law, a claimant is ineligible for UC
benefits when an employer discharges her for willful misconduct. Although the term
“willful misconduct” is not defined in the statute, appellate courts interpret it as: “(a)
wanton or willful disregard for an employer’s interests; (b) deliberate violation of an
employer’s rules; (c) disregard for standards of behavior which an employer can
rightfully expect of an employee; or, (d) negligence indicating an intentional disregard
of the employer’s interest or an employee’s duties or obligations.” Klampfer v.
issues of credibility. Id. However, whether or not an employee’s actions amount to willful
misconduct is a question of law. Id.
7
Unemployment Compensation Board of Review, 182 A.3d 495, 499 (Pa. Cmwlth.
2018). “An employer seeking to prove willful misconduct by a policy violation must
demonstrate the existence of the policy, its reasonableness, and its violation.” Brown
v. Unemployment Compensation Board of Review, 276 A.3d 322, 327 (Pa. Cmwlth.
2022). While the employer bears the initial burden of proving the existence of the work
rule and its violation, the burden then shifts to the claimant to prove that the violation
was for good cause. Kaite, 175 A.3d at 1134.
Here, the Board does not challenge the reasonableness of Employer’s
policy and openly acknowledges “there is no dispute that a COVID-19 vaccine and/or
swab testing, in the context of Claimant’s employment at a hospital, was reasonable,
was communicated to Claimant, and Claimant refused.” (Board’s Br. at 8.) Instead,
relying on Kaite, the Board contends that Claimant had good cause to refuse
Employer’s directive because of her sincerely-held religious belief against foreign
objects entering her body. Id. at 7.
We begin by observing that the First Amendment to the United States
Constitution provides: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof[.]” U.S. Const. amend. I. “Where the
state denies [UC] benefits because of conduct mandated by a religious belief, putting
substantial pressure on a person to modify behavior and violate that belief, a burden
upon religion exists.” Kaite, 175 A.3d at 1134. “The burden that a denial places on a
claimant’s right to free exercise must be sufficiently compelling to override the
claimant’s First Amendment rights.” Id. A claimant’s refusal to comply with an
employer’s requirement that is in opposition to her religious beliefs can constitute good
cause for violating that policy. Id. at 1135.
8
“In the free exercise area, two threshold requirements must be met before
particular beliefs may be accorded First Amendment protection. First, the beliefs
avowed must be sincerely held, and second, the beliefs must be religious in nature, in
the claimant’s scheme of things.” Monroe v. Unemployment Compensation Board of
Review, 535 A.2d 1222, 1225 (Pa. Cmwlth. 1988) (emphasis added). In determining
whether a belief is sincerely held, we may not question the truth of a belief, but must
determine whether that belief is truly held. Id. (emphasis added). Moreover, we must
“avoid any predisposition toward conventional religions so that unfamiliar faiths are
not branded mere secular beliefs,” which do not fall within the ambit of First
Amendment protection. Id.In Kaite, we considered whether the claimant had good cause for violating
her employer’s fingerprinting requirement as part of its background check policy,
which she averred conflicted with her sincerely-held religious beliefs. The claimant
informed the employer it was against her religious beliefs to be fingerprinted and asked
if she could submit to a different form of background check that did not involve
fingerprinting. The claimant testified she was raised to believe that any marking on the
hands or head is the mark of the devil and will prevent her from getting into heaven.
She stated she was “willing to do anything else they ask me to do with the exception
of [fingerprinting] because I really do believe I won’t get into heaven.” Kaite, 175
A.3d at 1135. The Board determined that the claimant was ineligible to receive UC
benefits because she did not have good cause for violating the fingerprinting
requirement. On appeal, we reversed the Board’s decision and in doing so “recognized
the importance of evaluating one’s beliefs only for their sincerity” and noted “it is not
the employer’s place as an employer, nor ours as a court, to question the correctness or
even the plausibility of employee’s religious understandings. . . . So long as there is
9
sufficient evidence that employee’s beliefs are sincerely held and conflict with
employer’s employment requirement, that is the end of the matter.” Id. at 1137(brackets omitted).
Similarly here, the record reflects that Claimant’s religious beliefs against
invasive procedures are sincere and long held, as she has consistently refused the flu
vaccine for religious reasons and does not participate in blood draws. When Claimant
learned of Employer’s COVID-19 vaccine policy, she immediately objected to it solely
on religious grounds, and Employer granted her an exemption. However, when
Claimant voiced this same objection to the nasal swab testing and offered to submit to
saliva testing, which she viewed as a non-invasive alternative, Employer rejected this
proposal.
Although Employer attempts to frame Claimant’s objection to the swab
testing as merely secular and not religious in nature, the record does not support this
characterization. Claimant’s written notification to Employer addressing the testing
requirement referenced only the policy’s “conflict with [her] sincerely held religious
beliefs.” (R.R. at 146a.) Likewise, Claimant consistently testified that her objection
was based on “a violation of [her] religion part of her relationship with God.” (R.R. at
131a.) While Claimant did cite safety concerns as a secondary reason for refusing
nasal swab testing, the record makes clear that her primary objection was religious and
not secular in nature. The Board credited Claimant’s testimony that this method of
testing was prohibited by the tenets of her religion and determined she had good cause
to refuse it. Upon consideration of the record before us, we discern no error in the
Board’s disposition of this issue.
B. Lack of Notice of Board’s Reconsideration of its Order
10
Employer next contends the Board failed to provide it with notice of its
intent to reconsider and vacate its September 14, 2022 decision, in which it initially –
and correctly– denied UC benefits to Claimant. Employer maintains that, had it been
provided with adequate notice, it could have addressed the Board’s misapplication of
the law and its misinterpretation of the Kaite case in light of the facts of the instant
case. (Employer’s Br., at 50-53.)4
While we agree with Employer that it should have been made aware of
the remit request, any error made in this regard was minor and would not have changed
the outcome of these proceedings. Employer has fully addressed its position
concerning Claimant’s eligibility to receive UC benefits before the Board and on
appeal. Accordingly, we affirm the order of the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
4
Specifically, Employer briefly references Pennsylvania Rule of Appellate Procedure 121(b)
(“Service of all papers required. Copies of all papers filed by any party and not required by these
rules to be served by the prothonotary shall, concurrently with their filing, be served by a party or
person acting on behalf of that party or person on all other parties to the matter. Service on a party
represented by counsel shall be made on counsel.”); and 34 Pa. Code § 101.53 (“Mailing of notices,
orders or decisions of a referee, or of the Board to the parties at their last known addresses, or issuance
by electronic transmission when permitted by law and this chapter, as furnished by the parties to the
referee, the Board or the Department [of Labor and Industry], shall constitute notice of the matters
therein contained.”)
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
St. Luke’s University Hospital, :
Petitioner :
:
v. : No. 1170 C.D. 2023
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 1st day of November, 2024, the September 20, 2023
Order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge