Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—D. Minn.: Employee’s challenge to COVID-19 testing requirement does not advance to trial, (Jan 27, 2025)

By Nadine E. Roddy, J.D.

The employee signed an agreement to submit to weekly testing in lieu of complying with the employer’s vaccine requirement.

No reasonable jury could conclude that a health care employee who chose to undergo weekly testing for COVID-19 rather than receive the vaccine was discriminated against on the basis of his religious beliefs, the federal district court in Minnesota has ruled. The employee failed to show that he ever communicated the religious basis of his objection to the employer’s vaccine-or-test requirement (Zarn v. Minnesota Department of Human Services, No. 0:22-cv-01756-MJD-DJF (D. Minn. Jan. 21, 2025)).

COVID-19 testing. An employee of the Minnesota Department of Human Services brought suit under Title VII and the ADA against his employer, alleging that its COVID-19 policies discriminated against him on the basis of his Roman Catholic religion. He worked as a Forensic Support Specialist at a treatment center, where his work required him to interact directly with patients.

The summary judgment evidence showed that in September 2021, the employer had adopted several policies to address the spread of the virus within its facilities. One policy required employees to submit proof of their vaccination status or to undergo weekly testing. Another policy provided “COVID Pay” to those employees who had received the vaccine but still contracted the virus. Even though the employee thought the vaccinate-or-test policy violated his religious beliefs, he signed an agreement to undergo testing because he felt he had no choice if he wanted to avoid discipline. He unsuccessfully sought an accommodation from the testing requirement and continued to test until DHS rescinded the policy. He never contracted the virus and thus never requested COVID Pay. Nevertheless, he challenged both policies in court after receiving a right-to-sue letter from the EEOC.

Before the court was the employer’s motion for summary judgment.

Failure to exhaust. As an initial matter, the court held that the employee had not exhausted his administrative remedies regarding his COVID-Pay-policy claim. He had not asserted that claim in his EEOC charge, and the policy was not so related to the vaccinate-or-test policy—which he had asserted—that the employer would have had notice of the pay policy claim from its receipt of the charge.

Failure to accommodate religious belief. Regarding the vaccine-or-test policy, the court determined that the employee failed to establish a prima facie case of religious discrimination under Title VII because (1) he had not informed the employer of the conflict between the policy and his religious beliefs, and (2) he had not shown that he suffered an adverse employment action. When a protected status is not obvious, the employee must show that the employer was sufficiently aware of the employee’s status to have been capable of discriminating based on it. Although the employee in this case had raised objections to the weekly testing in conversations with his supervisor, communications with the employer through his union president, and emails and conversations with a state agency employee, nothing in the record indicated that he had mentioned his religious beliefs as the basis of his objections. At most, the record showed that the employee communicated his opinion that the weekly testing was “unfair” and that he wanted “clarification” about possible exemptions.

Further, the only adverse action the employee alleged was the weekly testing the employer required him to undergo against his religious beliefs. Although the denial of a requested religious accommodation absent a showing of undue hardship may constitute an adverse action, the employee never informed the employer of his religious conflict, and thus the employer could not have denied a religion-based accommodation request.

ADA claim. The employee asserted that the employer violated the ADA by inquiring into whether he was an individual with a disability without a showing that the inquiry was job-related and consistent with business necessity. Yet he failed to explain how an inquiry into vaccination status or weekly testing could reveal a disability. Concerning his alternative argument that subjecting employees to COVID-19 vaccination and testing constituted an “unlawful medical examination” under the ADA, it was similarly unclear how such actions could reveal an employee’s disability status.

For these reasons, the court granted summary judgment for the employer.

The case is No. 0:22-cv-01756-MJD-DJF.

Judge: Davis, M.

Attorneys: Benjamin Paul Lanari (Mohrman, Kaardal & Erickson) for Benjamin Zarn. Amanda E. Prutzman, Office of the Minnesota Attorney General, for Minnesota Department of Human Services.

Companies: Minnesota Department of Human Services

Cases: ReligiousDiscrimination DisabilityDiscrimination Discrimination Covid19 MinnesotaNews