Lauren Petersen records as attorney Jennifer Kennedy issues a video statement after a press conference March 14, 2024 at Snohomish Regional Fire & Rescue headquarters in Monroe, flanked by three of the eight firefighters suing their employer for religious discrimination, from left to right, Kevin Gleason, Ryan Stupey and David Petersen.
Photo by Michael Whitney.
MONROE — The appeal case of the “Firefighter 8,” a religious discrimination case of eight Snohomish Fire and Rescue (SRFR) frontline personnel suing for back pay after they were put on months of unpaid leave for refusing the COVID-19 vaccine, has its next step in federal appeals court this week. Oral arguments will be heard April 3 in Portland in the Ninth Circuit Court of Appeals.
Link to video of oral argument and rebuttal April 3: https://www.youtube.com/watch?v=49q5-6i-6-g
The firefighters are now jointly being represented by attorney Jennifer Kennedy and attorneys from the Church State Council, a religious freedom public policy organization.
Central to this case is whether the fire service’s argument that letting unvaccinated firefighters mingle with others and with patients created an undue hardship and cost to its operations.
In early 2024, U.S. District Court Judge Thomas Zilly agreed with SRFR’s medical expert and issued a summary judgment to dismiss.
Their appeal to the Ninth Circuit, initiated two months later, seeks to overturn Zilly’s decision.
One piece is a religious accommodation case ruled by the U.S. Supreme Court titled Groff v. DeJoy sets defined thresholds for demonstrable hardship before a business can ever deny a worker a religious accommodation request.
Another piece is an argument that SRFR, headquartered in Monroe, handled unvaccinated firefighters in conflicting ways.
The firefighters’ attorneys make it a point that SRFR accepted mutual aid on calls from departments with unvaccinated firefighters on staff using medical
accommodations while keeping their own unvaccinated personnel on unpaid leave. Some of the eight found work at other departments and ultimately went on mutual aid calls to assist SRFR.
In the broader picture, a press release from the “Firefighter 8” says winning the appeal “could establish a decisive legal benchmark” to require courts to enforce Groff’s religious accommodation threshold with more uniformity.
Breaking it down
When the vaccine mandate went in effect in 2021, 46 SRFR firefighters — almost one-fourth of the firefighter roster — sought exemptions. Many got them.
SRFR said it couldn’t accommodate the firefighters with other work to do, and got the OK from the union to put them on unpaid leave, according to court documents.
Eight months later in summer 2022, SRFR reversed course and brought them back onto crews. They were still unvaccinated while COVID-19 was still considered a pandemic disease.
The firefighters argue they could have been accommodated by using personal protective equipment and regular COVID-19 testing after the state vaccine mandate for medical care workers came into force.
SRFR’s insurance carrier, a state insurance pool, said if an unvaccinated firefighter infected a patient who died, it would not cover any resulting claims, according to court documents.
The firefighters’ attorneys wrote in their appeal that this “exclusion was not limited to Covid-19 or to unvaccinated firefighters” so it is not applicable. Their appeal also notes there are other fire districts that are members of this insurance pool that had accommodated their unvaccinated firefighters.
Their call for back pay is because being on unpaid leave cost them each between $100,000 to $200,000 in pay and benefits, plus may have delayed their abilities to advance in rank, according to firefighters in the lawsuit who the Tribune spoke with in 2023.
If their appeal in the Ninth Circuit fails, the next court higher to try appealing the case would be the U.S. Supreme Court.
Link to video of oral argument and rebuttal April 3: https://www.youtube.com/watch?v=49q5-6i-6-g
