Constructive termination is a nasty phrase. A group called Micron Employees for Religious Freedom (MERF) claims it was one of several discriminatory actions Micron Technology committed while creating its vaccination mandate for its employees. On Feb. 18, MERF held a rally on the steps of the Idaho Statehouse with an attendance of around 50 to draw attention to their cause.
Benjamin Chafetz, president of MERF stated during an interview with Idaho Business Review (IBR): “It’s important to point out about MERF is that we are not anti-vaxers, and we are not trying to hurt Micron.” MERF maintains that it is only concerned with discrimination against those who worked at Micron who had religious objections to the COVID-19 vaccines.
Micron, the largest of Idaho’s three Fortune 500 companies, mandated that all of its employees needed to be fully vaccinated for COVID-19 by Nov. 20. Those who refused would be let go unless they had an exemption. Several employees did apply for exemptions, either medical or religious, and were granted them. Others pulled out of requesting an exemption because they were uncomfortable with Micron’s exemption process.
Some MERF members say they were subject to harassment while requesting an exemption regarding leading questions about their faith and asked to sign a form about their potential use of drugs developed using aborted fetus cells. At least one food service contractor at Micron, who worked for a firm providing onsite food, said she was told about the mandate but not about applying for a religious exemption.
Other MERF members believe they were subject to constructive termination disguised as an unpaid leave. When one was turned down for unemployment insurance (UI) because he was an employee on leave, he appealed to the Department of Labor Appeals Bureau. The Appeals Bureau ruled that he was actually unemployed and eligible for benefits. For details of this UI appeal, see the “When a leave from work becomes termination” sidebar.
MERF’s attorney, John Runft of Boise, remarked: “We want Micron to relent on the vaccine mandate and to reimburse people for their lost wages…The courts have uniformly declared, particularly with regard to the basic rights that are to be found in the first 15 amendments (of the Constitution), that violation of those rights are irreparable. And when they’re irreparable, there are damages to be considered.”
According to Chafetz, MERF has compiled a list of 29 different complaints. The group’s largest objections to Micron’s actions fall into three categories in how it treated employees who applied for religious exemption:
Micron turned down speaking with MERF in a Nov. 19 email: “We cannot discuss, in a group setting, individual team member situations and concerns,” while also stating that the door was open to individuals who wished to discuss issues concerning the mandate and exemptions.
Kim Collins worked for a company contracted to provide food service to Micron. While she didn’t work directly for Micron, the firm’s vaccination mandate drove her to quit before she was fired: “I was a contractor at Micron. They were going to shut my badge off so it wouldn’t have worked on Monday, Nov. 15. There were three of us in the kitchen … (We felt that vaccination) was the other option open for us.” It wasn’t an option for Collins since she related she has religious objections to vaccination.
“Neither my company, nor Micron … told me that I could apply for an exemption,” Collins said.
Chafetz told the IBR: “They wanted me to sign a form that I did not take any of the drugs listed on it because they used aborted fetus materials in their development.” At the Feb. 18 rally, Brennan Hopkins, vice president of MERF, called his exemption application process “a betrayal of trust” and an invasion of privacy when his management wanted the name of his church and his pastor. Hopkins has worked for Micron for more than two years.
The U.S. Equal Employment Opportunity Commission (EEOC) is the agency that investigates civil rights claims. The issues that MERF members have with Micron will start their journey as a no-cost complaints filed with the EEOC. If the EEOC does not act on the complaints, Runft said the next step would be a civil action in U.S. District Court.
The EEOC has published guidance for both employees and employers regarding religious discrimination. Many of the details from this guidance are summarized in the sidebar “Religious exemptions under Title VII of the Civil Rights Act of 1964.” An IBR review of the EEOC guidance suggests that both sides have valid points of view.
The following is a brief summary of some of those items: According to current federal rules, an employee must request a religious exemption in a timely manner. So long as an employee has a sincerely religious belief, the employer must accommodate the request for a religious exemption. If there is legitimate doubt regarding an employee’s religious beliefs, an employer may be justified to ask further questions on the subject. The employer can use any reasonable accommodation to address an employee’s religious exemption regardless of what an employee may desire as an accommodation.
Micron sent this response to an IBR request for comment: “Micron does not comment or speculate on potential or pending legal proceedings. Consistent with CDC guidance, however, Micron’s position is that vaccination is the single best defense against COVID-19…We require COVID-19 vaccination for Micron team members and regular, on-site contractors, subject to any approved accommodations.
“Micron is pleased to report that more than 99% of our U.S. workforce provided proof of vaccination or were granted an accommodation. In particular, a small percentage of our U.S. workforce did pursue religious accommodations from Micron’s vaccine policy, and the company accommodated everyone who pursued these accommodations through our process.”
Unless a state law exists that prohibits the practice, private employers do have the right to mandate vaccination against disease for their employees. There are two exemptions to vaccination mandates for medical and religious reasons. The religious exemption requires employers to “accommodate the religious beliefs and practices of (job) applicants and employees.” The legal vehicle that protects an employee’s religious rights in the private workplace is Title VII of the Civil Rights Act of 1964.
Signed into law by President Lyndon B. Johnson on July 2, 1964, the Civil Rights Act of 1964 is an omnibus juggernaut set of statutes that protects individuals from discrimination based on race, color, national origin, religion or sex in multiple life venues such as voting, housing, education, government services, commerce and employment.
Title VII of the act makes it illegal to discriminate in all aspects of employment, including: “Refusal or failure to reasonably accommodate an individual’s sincerely held religious observances or practices, unless doing so would impose an undue hardship on the operation of the employer’s business.”
There are a few items hiding in the above sentence that require some unpacking — namely what does the federal government consider an individual’s sincerely held beliefs, what is appropriate reasonable accommodation and what is undue hardship for an employer?
The U.S. Equal Employment Opportunity Commission (EEOC) is the point agency for providing guidance and investigation on civil rights violations claims. Its guidance to employers states that religious accommodations should be “granted without posing an undue hardship on the operation of the employer’s business.”
Case law has clarified that undue hardship involves more than just minimal costs. In general, it does not include things like the overhead cost to rearrange schedules but could include hiring temporary employees, depending on the circumstances of the employer.
The EEOC usually determines undue hardship on a case-by-case basis: “Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, the courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”
An employee must request a religious exemption, but once that request is made, the employer must seek a reasonable accommodation for that employee. The employer is not obliged to provide an accommodation that will meet all of an employee’s preferences; rather, the employer can provide “a reasonable alternative accommodation” instead, with which “the employee must cooperate.”
Overall, the courts have weighed in mostly on the employers’ side as to the shape of alternative reasonable accommodation, like requiring masking, periodic testing and social distancing where practical. Depending on the circumstances, reasonable accommodation can include a leave of absence without pay and even termination.
Any sincerely held religious belief is sufficient to establish grounds for an exemption, according to the opus of case law on this subject. Individual belief that deviates from one’s denomination is protected, as is belief for someone who does not subscribe to any formal denomination.
The criteria for sincerity is a sticky point though the courts have supported a broad expanse for sincere belief: “An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.”
With regards to the COVID-19 or any other vaccination, the reason for exemption must be on religious grounds and not personal ones. The courts have ruled against religious exemptions when it was shown that the reason was personal and not religious.
COVID-19 vaccination mandates have pushed hard against claims for exemption on the basis of religious faith. Some have used the Title VII protections for religious expression to game the system into granting a vaccination exemption.
Though the presumption of religious sincerity should be the default positions, employers do have the right to make inquiries about an employee’s religious beliefs: “If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance or practice, the employer would be justified in seeking additional supporting information.”
Labor law on religious exemptions from vaccinations can be a slippery slope. Even the EEOC cautions that its guidance, which this article relies on, is not the last word on what is or is not a religious exemption. Businesses should consult legal professionals to avoid missteps with religious exemptions for vaccinations.
The Idaho Department of Labor Appeals Bureau ruled against Micron Technology on Jan. 6 when it determined that an employee on a leave from work was actually jobless for the purposes of making an unemployment benefits claim. The Appeals Bureau found that the conditions for the leave left Micron’s former employee unemployed.
Boise-headquartered Micron established its own COVID-19 vaccination mandate on Sept. 7, 2021. The corporation notified its employees that they had until Nov. 20 to become vaccinated or face termination.
According to the Findings and Facts issued by the Appeals Bureau for docket 421027798-2022, one former Micron employee, Albert Asker, requested a religious exemption from the vaccination mandate on September 3, 2021. Micron approved that request on Nov. 1 and placed this employee, Albert Asker, on an indefinite unpaid leave on Nov. 20, 2021, “until a general pandemic level three has been reached.”
Micron evaluated each employee who requested a religious exemption and granted three different levels of accommodation: working at Micron facilities with precautions like wearing personal protective equipment, social distancing, etc.; working at home; or indefinite unpaid leave. The term “accommodation” is defined by the U.S. Equal Employment Opportunity Commission.
Asker filed for unemployment. It was denied on Dec. 9, on the grounds that he retained his status as an employed person because he was on leave. The Findings and Facts stated that there was “no clear timeline as to when or if that level (level three pandemic threat) will be reached, noting that at the time of the appeal, Idaho was at level five.
Asker appealed the denial of his claim. In Idaho, appealed claims are heard by the Bureau of Appeals. If one of the parties wished to appeal the bureau’s decision, it has 14 days after the mailing date of the decision to file with the Idaho Industrial Commission. Appeals of the Commission’s decision go to an Idaho district court.
Asker testified on his own behalf at the appeal hearing. Micron was represented by Jenna Arregui-Donaca, a Micron Senior Employee Relations Specialist.
Appeals Examiner Gregory Stevens reversed the denial of Asker’s claim. Stevens wrote in his decision: “The issue before the Appeals Examiner is whether the claimant is unemployed, in accordance with § 72-1312 of the Idaho Code.” The Examiner’s decision narrowed in on the lack of a firm date when Asker could return to work.
Stevens ruled: “Benefits are allowed effective November 21, 2021. The claimant is not on a mutually-agreed-upon leave of absence and is unemployed … Since the period of unpaid leave is indefinite with no definite return to work, for unemployment insurance purposes, the claimant is considered to not be on a leave of absence and is unemployed.”
Lauren Bonneau contributed to this article.
Due to a conflict of interest, IBR Managing Editor Alx Stevens was not involved in any aspect of producing this article.