Ohio Minimum Wage Increases to $10.70/hour on January 1, 2025.

 On January 1, 2025, Ohio employers will need to post the updated Minimum Wage poster, which is available on the Ohio Department of Commerce's website.   Ohio's minimum wage will increase from $10.45/hour to $10.70/hour.  The poster also notes wages for tipped employees, and employees exempt from receiving the state minimum wage.   It also notes that employers "shall pay an employee for overtime at a wage rate of one and one-half times the employee’s wage rate for hours in excess of 40 hours in one work week, except for employers grossing less than $150,000 per year."

Butler County Court of Appeals Alters Summary Judgment Standard in Employment Discrimination Cases

Last week, a divided Butler County Court of Appeals reversed a car dealership’s summary judgment on claims of discriminatory compensation and public policy wrongful discharge brought by a six-month employee who claimed that she had been fired for reporting COVID and rodent issues to OSHA and who had been not been paid promised bonuses.  Johnson v. Cincy Automall, Inc., 2024-Ohio-5749.  While the Court was unanimous that she could pursue her wrongful discharge claim, a divided court held that the traditional burden shifting used for decades in all employment discrimination cases no longer applied in summary judgment cases.  Rather, the plaintiff as the non-moving party with the admitted ultimate burden of proof was not required to produce evidence supporting her claim or prima facie case until the employer/moving party disproved her allegations with actual evidence of its own in its motion.    In addition, the court's majority held that she could show that she was similarly situated without reference to a comparison of job duties or terms and conditions of employment based solely on her allegation that she had not been paid her earned bonus while male employees (with different jobs and terms and conditions of employment) had been paid their earned bonuses. 

According to the Court’s opinion, the plaintiff had been hired in July 2020 to manage the Facebook page, implement new software and develop sales leads for sales staff.  She was promised a weekly salary and monthly bonuses that were based on developed sales leads.   However, she was never paid any bonus and alleged the owner claimed that he could not afford to pay her, but he did pay the sales people (who were mostly male).  (The dissent notes that the owner apparently admitted that he owed her some unpaid bonuses).   When he ignored her concerns about non-compliance with COVID protocols and mouse feces, she reported her concerns to OSHA on December 15.  She claimed that her computer and FB access was revoked the next day and she was fired a week later.  The dealership denied this and claimed that she voluntarily resigned after being offered a transfer to an administrative position.  OSHA investigated and determined in March that she had not been fired for engaging in protected activities.  She brought suit in May, claiming unspecified sex discrimination and harassment, breach of contract, retaliation, and wrongful discharge in violation of public policy.   The trial court granted summary judgment to the employer on all claims, except notably, the breach of contract.   She appealed and a divided court of appeals reversed dismissal of the claims of discriminatory compensation (i.e., payment of the bonuses) and wrongful discharge.

The trial court dismissed the public policy claims on the basis that there were no clear public policies underlying the employer’s COVID practices and the rodent infestation.   Although the Court unanimously reversed this decision, this same Court had previously upheld the discharge of an HR Director on the grounds that COVID was not a workplace safety issue, but a general public health issue. The plaintiff “contend[ed] that COVID hazards and a mice infestation are matters of workplace health and safety and that an at-will employee who is fired for filing a complaint with OSHA concerning matters of health and safety in the workplace states a valid claim for wrongful discharge in violation of public policy.”  Importantly “she invoked the OSH Act's anti-retaliation provision in 29 U.S.C. 660(c).”   Ohio’s leading Supreme Court case on wrongful discharge claims – Kulch v. Structural Fibers – recognized a claim for retaliation for filing a claim with OSHA.   Other, later cases recognized claims for similar internal complaints. 

It is crucial to emphasize that the threshold for protection under this public policy is not the ultimate validity of the complaint, but rather the employee's good faith belief in its legitimacy. As the Ohio Supreme Court observed in Kulch, to require otherwise would risk deterring employees from reporting genuine health and safety concerns, which would undermine the policy favoring workplace safety.  . . .  This principle also finds support in federal law surrounding one of the main sources of the public policy, 29 U.S.C. 660(c).

The Court distinguished its former public policy/COVID decision on the grounds that the HR Director was not expressing safety concerns, “but rather for disagreeing with her employer's COVID-response protocol. Specifically, she advised an infected employee to quarantine for ten days contrary to her employer's order that the employee return to work.”  At that time, the Court did not view the employee’s objection to the employer’s refusal to honor a quarantine direction as an OSHA retaliation concern, but here, found the employee was expressing safety concerns (which focused on handwashing, sanitizers and unpaid leave for quarantines). 

All this being said, the Court refused to address the employer’s arguments refuting causation and its good reason for any adverse employment because these arguments had not been raised in its trial court motion or addressed by the trial court in its summary judgment decision.   While its review is de novo, it indicated that appellate courts should not address issues not raised by the trial court and, instead, would limit this decision to the scope of the trial court decision.  

A divided Court reversed the pay discrimination dismissal on the grounds that she had been denied bonuses which she had allegedly earned (and was the subject of a pending breach of contract claim), but male sales people were paid their bonuses.    At core, she was claiming that that the only reason she wasn’t paid for the bonuses that she earned was because she was female and the car salespeople (all but one of whom were male) were paid their bonuses because they were mostly male.    However, the Court’s majority criticized the trial court’s description of her claim as being that she was paid less than male employees for the same work when she held an administrative position and they were sales employees.  As far as the majority is concerned, she stated a discrimination claim when she compared the fact that she was not paid her earned bonus when male employees were paid their earned bonus, even if the terms of their bonus arrangements were based on different metrics and conditions.

 This question cuts to the heart of the "similarly situated" analysis, which requires us to determine whether the male comparators were similar "in all relevant respects."  . . .

 {¶ 39} It is imperative to note that there is no rigid, predetermined list of factors that must be considered in making this determination. As the Sixth Circuit aptly noted, a court must make an "independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee" based on the facts of the case.  . . .  This aligns with the Ohio Supreme Court's case law on this issue, which recognizes that "what is relevant depends on the case."

 . . .. In the present case, the minutiae of duties, job titles, or the particulars of bonus structures are of little consequence. What matters is the simple fact of entitlement to a bonus and payment—or lack thereof.

 . . . . .

[The employer] argues that [the plaintiff] cannot be similarly situated to male employees because she managed the Business Development Center while they worked in sales. But this misapprehends the nature of the similarly situated analysis. The question is not whether employees share identical job duties across the board in the abstract, but whether they are similarly situated in the specific context that forms the basis of the discrimination claim. . . . Here, [she] alleges discrimination in the payment of contractually-promised bonuses. The relevant comparison, therefore, is whether male employees who were contractually entitled to bonus payments received them while [she] did not. [The employer] offers no explanation for why the difference between management and sales positions matters for purposes of honoring contractual bonus obligations. In the absence of evidence demonstrating the relevance of this distinction to bonus payment practices, [the employer] has failed to meet its initial burden on summary judgment to show that no genuine issue of material fact exists regarding whether [she] was similarly situated to male employees who received their bonuses.

 . . . . [Her] compensation agreement, her complaint, her deposition testimony, and [the employer’s] answers to interrogatories collectively indicate that [she] and the men were entitled to bonus payments, that the men were paid, and that women (with one exception) were not paid.

In addition, the Court’s majority then ignored traditional burdens of proof in employment discrimination cases.  It faulted the employer for merely pointing out that the plaintiff had failed to sustain her burden of proving discrimination instead of producing its own independent evidence as the moving party.  Apparently, the employer had pointed out in its motion that the plaintiff did not produce any evidence, such as pay stubs, etc. and asserted that she had been an administrative assistant for months (thus, not entitled to any bonus).  Rather, Court’s majority contended that the employer “needed to point to evidence that, for example, the men were not entitled to payment or were not paid.”

The dissent pointed out that the employer in a discrimination case is not required to prove the absence of discrimination until the plaintiff produces enough evidence to show that she was treated differently.    However, the Court’s majority concluded: “This failure to discharge its initial burden is fatal to [the employer’s] motion for summary judgment on the sex discrimination claim.  It remains to be seen whether this case will be appealed to the Ohio Supreme Court based simply on the Court’s mysterious and inexplicable alteration of the burdens of proof in discrimination cases:

{¶ 45} It is crucial to emphasize that at this stage of the proceedings, the ultimate burden of persuasion has not yet shifted to [the plaintiff]. While she retains the ultimate burden of persuading the trier of fact that [the employer] intentionally discriminated against her,  that burden is not yet operative in the context of summary judgment.

The dissent identified a lot of problems with the majority decision.  First, the plaintiff’s complaint and the summary judgment briefs barely mention, let alone discuss, wage discrimination.  Rather, the motion focused on her allegation that she had been terminated (which the employer denied) and contended that she had resigned after refusing a transfer.  The plaintiff’s response to the motion likewise focused on the termination allegation, but also identified evidence that certain men were paid the bonuses that they earned and that the employer engaged in a lot of allegedly sexist conduct.  Nonetheless, the trial court addressed wage discrimination in his decision, concluded that she had suffered an adverse employment action, but could not show that she was treated differently by being paid less for the same work since her work was not the same.   He also noted that she had admitted in her deposition that she had never reviewed actual payroll records to support her allegations.  

In other words, [her] sex discrimination claim is not an equal pay claim—sometimes called a wage discrimination or pay discrimination claim—but is instead a sex discrimination claim that, as a factual matter, relates to [the employer’s] alleged failure to pay certain compensation (bonuses) that [she] alleges were owed to her.  [She] only alleges that [her employer] has discriminated against her in failing to pay bonuses, not in the terms of her bonus plan. There is therefore no need to examine equal pay statutes . . .

Second, the dissent took exception to the majority’s evaluation of who is similarly situated:

Speaking generally, the simple fact that some employees are entitled to a bonus and a plaintiff is not paid a bonus, by itself, does not establish that those employees are similarly situated to the plaintiff. Is it the same bonus? For doing the same work? Who decides who gets paid the bonus? Do the employees have the same bonus plan? Did the plaintiff and the other employees differ in their compliance with the terms of the bonus plan? At least some commonality must be established—the same or a similar job, the same pay plan, the same supervisor, etc.

The dissent then pointed out that the plaintiff had a very different job from the men to whom she was comparing herself.   She did not and could not produce any evidence that the men’s bonus plan was similar to her bonus agreement.

Finally, the dissent pointed out that for decades the plaintiff has been required in opposing a summary judgment to produce or identify evidence to support her burden of proof, but in this case, the majority was faulting the employer for not producing evidence to dispute the plaintiff’s burden. 

Next, the majority states that "[the employer] needed to point to evidence that, for example, the men were not entitled to payment or were not paid." In making this statement, the majority seems to imply that a court faced with a summary judgment motion must assume that employees identified as similarly situated by a plaintiff are in fact similarly situated, and that the burden is on the employer (the moving party) to disprove that the employees are similarly situated. I am aware of no case law supporting the majority's view of what McDonnell Douglas requires.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Appeals Nationwide Injunction of new FLSA Salary Basis Regulations and Mandatory January 1 Salary Increase for White Collar Employees

Last month, a federal judge in Texas enjoined on a nationwide basis April's new FLSA regulations increasing the minimum salary required for the white collar exemptions (for professionals, executives and administrators) and automatically increasing that threshold every six months.   Texas v. DOL, Case No. 4:24-CV-499 (E.D. Tx. 11/15/24).   The Department of Labor last week appealed that decision to the Fifth Circuit.  While most employers likely already increased their minimum exempt salaries to meet the initial July 1 deadline, employers have time to rescind any scheduled future increases intended to meet with January 1, 2025 deadline.  The Columbus Dispatch reported this week that OSU has so rescinded the scheduled salary increases intended to satisfy the new – now enjoined -- rule.  The court found, among other things, that the DOL exceeded its authority in making automatic increases instead of going through the Administrative Procedures Act route for each increase and refused to defer to the DOL under the Supreme Court’s 2024 Loper decision (rejecting the former Chevron rule). 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Two Religious Exemption Challenges to Employer COVID Vaccination Policies

In what seems never-ending COVID-19 litigation, the Sixth Circuit affirmed summary judgment for two employers who were sued for violating employees’ religious beliefs.  In the first, the employee was provided with a weekly testing accommodation to avoid vaccination, but she rejected it as coercive, manipulative and invasive even though the employer permitted saliva testing.  DeVore v. Univ. of Kentucky Bd of Trustees, No. 23-5890 (6^th Cir. 10/11/24).  The Court found that she failed to produce any evidence to show a conflict with her unspecified religion or beliefs and the employer’s test-or- vaccinate policy.   In the most recent case, the employee’s request to work remotely without a vaccination was denied because her essential job duties required her to work daily with healthcare providers who are tending extremely ill children.  Kaiser v. St. Jude’s Children’s Research Hosp., No. 24-5207 (11/18/24).   The Court found that it would constitute an undue hardship to transfer her to another job and determine whether a different job could be performed remotely even though it had permitted a dozen other employees to work remotely as an accommodation.  It also rejected her direct supervisor’s affidavit as conclusory about whether accommodations existed and the manner in which her job duties could be performed remotely.  Finally, the Court rejected her argument that the employer failed to engage in an interactive process or that an elaborate process was even required under Title VII (vs the ADA). 

According to the Court’s opinion in DeVore, the plaintiff had worked for the University since 1999.  Following the COVID pandemic, she requested to retain a hybrid work schedule, but was refused.   When the University instituted a vaccinate-or-test policy, she sought a religious exemption.  While never specifying the name or nature of her religion, she objected to the policy as coercive (i.e., could be fired for non-compliance), manipulative (i.e., trying to compel vaccination) and invasive (i.e., genetically reprogram her or risk contamination from nasal swabs, etc.).  The University then agreed to permit her to be tested with cheek swabs or saliva, but she maintained her “religious objections.”   She was subjected to progressive discipline and threatened with termination during an unpaid suspension.  However, the University encouraged and permitted her to retire instead.   In response to the University’s summary judgment motion, she submitted only her prior emails and no affidavits or deposition testimony. 

[She]  offers no other evidence to show a conflict between her religion and the Policy. She supplied no affidavit or declaration articulating how complying with the Policy conflicts with her religious beliefs or practices. She entered none of her own deposition testimony in the record to add color to the excerpts the University provides. She filed a six-page complaint, which in any event is unverified, that included only the conclusory statement that “due to her deeply held religious beliefs,” she “objected to mandatory Covid testing.” [She] has, in fact, throughout this litigation never identified in the record what her religion is.

In the end, [her] religious opposition to the Policy flows almost entirely from her objections to nasal PCR testing and vaccination, objections she raised before the University informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to account for these alternatives. Her invasiveness objection responds only to nasal swab testing, her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her coercion objection doubles down on her manipulation objection, supplementing it with only her “personal” characterization of mandatory testing as inequitable and unfair.  . . .  But they fail at summary judgment to establish a conflict between [her] religion and the Policy. [Her] Title VII claim fails with them.

According to the Court’s opinion in Kizer, the plaintiff “was employed by [the] Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.”’  The Hospital also implemented a mandatory vaccination policy (to protect its pediatric patients) with a religious exemption process. The plaintiff sought an exemption and sought to work remotely.  However, when examining her primary job duties, the Hospital denied the request because of “the upcoming launch (or “go live”) of the new Epic system and  . . . her job required her to work in person in clinical areas and in contact with clinical people.”  In particular, “in the run up to the system’s “go live” date, “it was anticipated that [she] would shadow clinicians, nurses, research coordinators, clinical laboratory personnel, pharmacists and others involved in clinical research, often in yellow-zoned clinical areas, to better understand decision-making and workflow for the build of the new system.”’ Apparently, after she was fired, she suggested other possible accommodations which were never considered.  She ultimately submitted an affidavit from her direct supervisor suggesting that some of her duties could have been transferred to vaccinated staff or she could be reassigned to a position which could accommodate remote work.

The Court rejected the plaintiff’s argument that the Hospital failed to reasonably accommodate her request because it never consulted with her or her direct supervisor or engaged in any interactive process (like would be required in evaluating reasonable accommodation requests under the ADA). 

Though [the plaintiff]  frames this assertion as a factual dispute, she has pointed to no legal authority that would require employers considering Title VII accommodations (rather than accommodations under the Americans with Disabilities Act (ADA)) to engage in such a process, much less any legal authority holding that Title VII required [the employer] to consult specifically with [her] or her direct supervisor,  . . .. , rather than [her] ultimate supervisor,  . . . . Neither the ADA nor Title VII contains a statutory reference to a required interactive process, but the regulations implementing the ADA state that “[t]o determine the appropriate reasonable [disability] accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” . . . Title VII’s regulations contain no similar reference to an interactive process. [The plaintiff] does not ask us to determine whether the ADA’s regulatory interactive-process requirement applies to religious accommodation claims under Title VII. But even if we assume that such a requirement applied, [the employer] would satisfy it, particularly as defined by regulatory guidance specific to Title VII.

The Equal Employment Opportunity Commission (EEOC) publishes a nonbinding compliance guide for employers covered by Title VII which provides that, “[a]lthough an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so.” . . . The manual continues, “[o]nce the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer’s business.” Id. Importantly, the EEOC concludes that “[f]ailure to confer with the employee is not an independent violation of Title VII. But as a practical matter, such failure can have adverse legal consequences.”

 . . ..

 . . . [The employer] submitted undisputed evidence that it developed and implemented a systematic process for considering requests for religious accommodation, including by “obtain[ing] promptly whatever additional information [was] needed to determine whether a reasonable accommodation [was] available.” . . . [The plaintiff’s] request provided ample information about her religious beliefs regarding the vaccine.  . . [The employer] presented evidence that it obtained and developed information about the risk of COVID exposure in the context of its mission of treating vulnerable juvenile patients,  . . . as well as evidence that [it] obtained information about [her] essential duties and whether her job could be performed remotely, . ..

Even under the ADA, an employer’s failure to engage in an interactive process “is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . . . “In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim.”  . . .  As we hold below, [she] has not “present[ed] evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”

[The plaintiff] argues that [the employer] should be required to present evidence that it considered various alternative accommodations proposed by [her] after the fact, and she asserts that [it] failed to engage in a good-faith interactive process because “[t]he only accommodation it ever considered . . . was that all the job duties of the [religious objector] had to be able to be performed off campus.”  . . .  But even under the ADA’s explicit interactive-process requirement, “. . . [an] employer has the burden of showing how [a proposed] accommodation would cause an undue hardship, but the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith.”  . . . . And we have held in other Title VII contexts that “[i]n deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”  . . .  

Ultimately, [the employer] presented evidence that, because unvaccinated people posed a safety risk to its vulnerable and unable-to-be-vaccinated juvenile patient population, the presence of any unvaccinated staff on campus would be an undue hardship in the context of St. Jude’s core business and mission.  . . .  [She] has submitted no contrary evidence showing that it would be safe for unvaccinated people to be on campus. In fact, she expressly disclaims any “challenge[] [to] the legitimacy of [the employer] to implement a mandatory COVID-19 vaccine policy.”

We thus cannot say that, as a matter of law, [it] violated an implicit interactive-process duty under Title VII (as yet unrecognized in this circuit). [It] has presented evidence of a thorough information-gathering process with input from [the plaintiff] herself. And the EEOC is clear that Title VII contains no such hard and fast requirement of an interactive process. As discussed below, [she] has not provided legal authority to support a contrary conclusion or sufficient factual evidence to allow a reasonable jury to find that [it] could have accommodated Kizer without undue hardship.

To show that it would be an undue hardship to accommodate her request,

The employer must thus show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” meaning that the statutory requirement of “‘undue hardship’ is [met] when a burden is substantial in the overall context of an employer’s business.”

 . . . .

[The employer’s] evidence indicates that, contrary to [the plaintiff’s] suggestion, it would be less than a full year before her in-person duties kicked in.  . .. It thus presented evidence that in-person, “at the elbow” shadowing was an essential function of [her] job not easily “swapped” with another employee.  . . .  And because [she] could not be safely on campus while unvaccinated, she could not be accommodated without undue hardship.

[The employer’s] evidence also revealed that [her] other proposed accommodations would create a substantial burden in the overall context of its business, and thus an undue hardship. [It] submitted evidence that it maintained no 100% remote positions; even [her] out-of-state colleagues were required to come to campus on a regular basis.  . . . Because transferring [her] to an alternate position that could be performed 100% remotely would require [it] first to identify a new position for which [she] was qualified and then to determine anew whether that position could be modified to accommodate her, such a transfer would not alleviate the undue hardship.   . . . And [it] submitted evidence that it developed a thorough and systematic process for considering requests for accommodations,  . . .  that several dozen employees had requested religious accommodations, and that, unlike [her], the small number who were ultimately accommodated already occupied positions that could be modified to be 100% remote,  . . . . The district court thus correctly found that [it] evidence demonstrated that it would be “a substantial burden in the overall context of [its] business,” to identify and modify new positions for religious objectors, “especially considering the number of people seeking accommodation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.