Last week, the Sixth Circuit affirmed an employer’s summary judgment on the Title VII religious discrimination and retaliation claims brought against a hospital by an employee who objected to wearing a mask, being vaccinated and being tested. Henry v. Southern Ohio Medical Ctr., No. 24-3863 (6th Cir. Sept. 11, 2025). The Court concluded that the employee’s requested accommodation placed a substantial burden on the employer, which was tasked with providing a safe place for its vulnerable patients. It was questionable whether the plaintiff had put her employer on notice that she would accept non-invasive (i.e., saliva) testing, but in any event, such results were unreliable and took twice as long as nasal tests, which could be processed inhouse. “We have held that an accommodation that significantly increases the health and safety risks of vulnerable patients constitutes an undue hardship.” The Court also rejected her retaliation claim because her being placed on leave was based on a pre-existing deadline and for legitimate patient care reasons and not on her allegedly protected opposition conduct.
As many employers did, the Hospital required mandatory
vaccination of its staff or regular nasal testing, which it could process
inhouse within 24 hours. A deadline was set to comply. Every request for
a religious exemption from the vaccine was granted, but the plaintiff also
requested exemption from testing. Her position
involved direct patient care, including of new born babies. She objected on religious grounds to any
invasive procedures, including vaccines and tests. After the deadline, she was placed on unpaid leave until the end
of the pandemic, but refused to return when offered reinstatement because she
had found other employment.
After she filed suit, there was a factual dispute as to
whether the plaintiff communicated her willingness to submit to a saliva
test based on her repeated references to invasive testing. The trial
court found that the only compromise she offered was to self screen and stay
home if she felt sick. In any event, the Court found that even saliva
testing imposed an undue hardship on the employer. The Court has previously found that it is an
undue hardship to refuse all testing in a healthcare setting with direct
patient care positions.
Now consider the request for saliva
testing. Even this accommodation would place an undue hardship on SOMC by
increasing the delay in analyzing [the plaintiff’s] test results. The district
court concluded that “[m]ore than doubling the time it takes to learn whether a
patient-facing employee is positive for the virus unmistakably compromises
SOMC’s mission to serve the community and keep it safe.” . . . . The district
court was correct. We have held that an accommodation that significantly
increases the health and safety risks of vulnerable patients constitutes an
undue hardship. . . .
Before the district court, SOMC
presented evidence showing that saliva testing was a less effective method of
detecting COVID infection than other forms of testing available at the
time—thus increasing the risk of the spread of COVID. . . . [The
plaintiff] introduced no evidence to dispute this. SOMC also presented evidence
showing that it did not have the in-house capacity to analyze saliva testing
results. Analyzing saliva tests would have required third-party analysis which
would have at least doubled the time (from 24 to 48 hours) it took for SOMC to
learn whether [she] tested positive for COVID.
The Court also rejected her retaliation claim based on her
being placed on unpaid leave when she refused to be tested (i.e., opposed allegedly
unlawful requests). Even if the plaintiff
could prove a prima facie case of retaliation, the employer articulated
a non-retaliatory reason for placing her on unpaid leave: “exempting her from
vaccination and testing could lead to the spread of COVID-19 among its staff
and patients.”
The Court rejected her argument that the temporal proximity
between her allegedly protected opposition conduct and her being placed on
leave was evidence of pretext.
That argument fails, however,
because SOMC put [her] on unpaid leave the day after the long-established
deadline (September 17) by which every employee had to vaccinate or agree to
testing. The preexisting deadline “negate[s] any inferences that may arise from
the temporal proximity between [her] protected activities” and her placement on
unpaid leave. . . .
Similarly, the Court rejected her argument that refusing to
consider saliva testing also showed pretext because it found that her
deposition testimony could not be contradicted by her affidavit when she could
not remember during her deposition putting the employer on notice that she would accept saliva
testing and the affidavit also failed to identify when and how she communicated
such willingness.
[The plaintiff] also argues that
SOMC’s refusal to provide her with available alternative forms of testing shows
pretext. But that argument turns on us accepting the claim that [she] put SOMC
on notice during the September 14 call that she would now consider other forms
of invasive testing. For the reasons explained above, her deposition testimony
and affidavit don’t establish that she provided SOMC such notice.
Finally, the Court rejected her argument that the Hospital’s
grant of all other exemptions (to vaccination) meant the refusal to grant an
exemption for her (to testing) was evidence of pretext:
Finally, [the plaintiff] argues
that SOMC’s granting of all other accommodations shows pretext. . . . . But the argument would fail in any
event because [she] has not shown that any other accommodation recipients were
similarly situated to her “in all relevant respects.” . . . The uncontested evidence shows that of the
“approximately 300” employees who requested an accommodation, all “agreed to
weekly testing” except [her] and one other nurse [who resigned].
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.
