The eight firefighters who sued Snohomish Regional Fire and Rescue (SRFR) on claims of religious discrimination over the COVID-19 vaccine filed their appeal in late August to the federal Ninth Circuit Court of Appeals.
They seek to overturn a U.S. District Court judge’s summary judgment in January favoring the fire agency.
They had sued SRFR for not accommodating their requests for religious exemption after frontline workers were broadly mandated to be vaccinated in the fall of 2021. They were placed on unpaid leave for eight months before being brought back to the same jobs as before. They collectively want hundreds of thousands of dollars of back pay.
It's understood other firefighters in neighboring districts were adequately accommodated.
SRFR’s response in court is due later this month, according to a source involved with the lawsuit.
As frontline medics, they were among those eligible first to be vaccinated in late 2020.
Their attorney Jennifer Kennedy argues the firefighters were able to do their jobs while unvaccinated both during the 10 months before the state's vaccine mandate came into force and after they were brought back on the job. Kennedy points to how eight months later, SRFR granted their requests for religious accommodation and they were put back on their same frontline jobs. The state vaccine mandate was still in effect. The eight were still unvaccinated.
In district court, Judge Thomas Zilly ruled that it would have been a hardship on the fire service to accommodate them because of the legal liabilities of because of the higher potential unvaccinated firefighters embodied to transmit COVID-19 to patients and other crew members. The fire agency also said their insurer would deny liability if an infected firefighter gave a patient COVID-19 and caused medical complications as a "policy exclusion for infectious disease."
Kennedy wrote in her appeal that the Ninth Circuit's precedent is that an employer needs to show concrete evidence of hardships from accommodation, not hypotheticals.
A 2023 ruling in the U.S. Supreme Court, known as the Groff case, from a post office worker who wouldn't work on Sundays due to religious practice, changed how undue hardship is determined in the courts.
To the families, being off-duty cost them thousands of dollars in wages, they argue.
Some of the eight firefighters who sued coincidentally took up work at nearby departments that accommodated unvaccinated fire personnel with tests and masks. It meant they were mingling with SRFR crews on calls, Kennedy wrote.
Those involved call their appeal "groundbreaking." A press conference was held in Seattle late last week with solidarity from a King County firefighters group whose members were terminated for being unvaccinated.
The mandate
In 2021, Gov. Jay Inslee set a vaccine mandate requiring all health care workers be vaccinated by a set deadline, with three specific exemptions allowed to be recognized. Firefighters, who are frontline medics, were wrapped in.
In response, the union and SRFR had arranged to have unvaccinated firefighters use up their sick pay, and then be placed on unpaid leave.
Why unpaid leave? SRFR said in court documents it couldn’t find the unvaccinated firefighters alternate duties off the frontlines. SRFR could have terminated the eight, and been justified in doing so, SRFR argued.*
Almost one-fourth of SRFR’s firefighter roster sought exemptions.
The district court decision
Zilly, the District Court judge, wrote he agreed with a medical expert brought into the trial who said being vaccinated would have provided the highest safety precaution.
The eight argue that wearing personal protective equipment (PPE) such as masking, and regular COVID tests, could have been done to accommodate them.
Snohomish Regional Fire said in 2023 court documents it only thinks two of the eight actually carry bona fide religious beliefs against taking the vaccine. Zilly discarded that as not relevant in making his judgment earlier this year.
*- corrected
