St. Luke's Univ. Hosp. v. Unemployment Comp. Bd. of Review

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St. Luke's University Hospital, Petitioner v. Unemployment Compensation Board of Review, Respondent

No. 1170 C.D. 2023

Commonwealth Court of Pennsylvania

November 1, 2024

OPINION NOT REPORTED

Submitted: September 9, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

MEMORANDUM OPINION

PATRICIA A. McCULLOUGH, Judge

St Luke's University Hospital (Employer) petitions for review of the September 20, 2023 Order of the Unemployment Compensation Board of Review (Board), which found Employer's former employee, Christine Puello (Claimant), eligible for benefits under Section 402(e)^[1] of the Unemployment Compensation Law (Law), and reversed the decision of the Referee. Employer challenges the Board's determination that Claimant's sincerely-held religious beliefs conflicted with Employer's COVID-19 nasal swab testing policy. After careful consideration, we affirm.

I. Facts and Procedural History

Claimant began working for Employer as a part-time registered nurse on August 6, 2001. In August of 2021, Employer notified all employees that they were required to obtain a COVID-19 vaccination by September 25, 2021, or be approved for a medical or religious exemption. Employer further advised that employees approved for an exemption would be required to participate in weekly nasal swab testing for the virus. Claimant applied for and was granted a religious exemption from the vaccination requirement. In her August 20, 2021 application letter, Claimant explained that she is a Christian, that she believes in the Bible, and that her spiritual beliefs are not compatible with receiving the vaccine. (Reproduced Record (R.R.) at 139a.)

On October 4, 2021, Claimant informed Employer the nasal swab testing was also incompatible with her religious beliefs and that she was unwilling to submit to it. Specifically, Claimant explained:

I am writing this letter to inform [Employer] that after long consideration I have decided to decline the COVID[-19] nasal swab weekly testing. This decision is due to a conflict with my sincerely held religious beliefs. Inserting a nasal swab with contaminants into my body violates my conscience and my sincerely held religious beliefs as I have previously described in my religious exemptions. I am willing to submit my saliva under observation for weekly COVID[-19] testing which eliminates any invasiveness and preserves my dignity of one less object/contaminant entering my body.

(R.R. at 146a) (emphasis added).

Employer advised Claimant by letter that she was required to participate in nasal swab testing and that it was the only reliable method of testing. (R.R. at 147a.) On October 14, 2021, Employer discharged Claimant for her refusal to participate in nasal swab testing.

Claimant filed for unemployment compensation (UC) benefits, but was determined to be ineligible to receive them by the UC Service Center under Section 402(e)^[2] of the Law. Claimant appealed the Notice of Determination, and the Referee held a hearing at which she testified:

[Q.] Okay. Specifically, why is it that you were unwilling in the swab testing?

[A.] I was not willing to compromise the integrity of my mucus membranes and most important my sincerely held religious beliefs which is the integrity of my conscience and my soul.

[Q.] And specifically, what does this belief prohibit in relation to this testing?

[A.] It's an invasive procedure with a foreign object - possible foreign substances. That's a violation of the standard [inaudible] of my religion part of my relationship with God.

[Q.] Okay. Do you participate in drug -- in -- did you participate in any type of prior vaccinations?

[A.] I had religious exemptions since 2018 for the flu vaccine and I do have a copy of that letter as well. They were aware of it, and they also gave me an exemption for that as well.

[Q.] Did you participate in any type of blood tests?

[A.] Not in a very long time.

(R.R. at 131a) (emphasis added). With respect to alternative methods of COVID-19 testing, Claimant indicated:

[A.] Well, the [inaudible] information -- there's a ton of information out there that in May 2020 that Yale and Rutgers had studies for saliva testing . . . there were reliable saliva methods out here. There's literature out there to back it up. The [Centers for Disease Control] accepts saliva tests as well. . . . There are also reported adverse events where people have gotten the nasal swab, or the cotton swab stuck in their nose. They went to an [ear, nose and throat doctor]. They thought that they had gotten it all out. And there's a part stuck in the septum that had to go into surgical intervention. There are nosebleeds are a big -- mild side effect. And some --there's a study where the patient broke through the mucus membrane and had cerebral spinal which could lead to meningitis leaking from her nose.

[Q.] Okay. So you have this correspondence with the Employer, did you and you continued to indicate that you were refusing to participate in the swab testing; is that right?

[A.] Yes. (R.R. at 132a.)

The Referee issued his decision on June 10, 2022, in which he concluded Claimant was ineligible for benefits under Section 402(e) of the Law. The Referee explained:

In this case, the evidence shows that the employer discharged the claimant after she failed to comply with a directive to participate in weekly COVID-19 testing after being approved for a religious exemption to the COVID-19 vaccination. The evidence shows that the employer notified the claimant beginning on August 9, 2021, that employees would be required to be vaccinated to maintain their employment unless approved for an exemption. The Referee finds it reasonable for the claimant to be required to be vaccinated or participate in weekly testing due to the nature of her employment, working with the public. The evidence shows that the claimant was approved for a religious exemption to the vaccination, however, the claimant refused to participate in nasal swab testing for COVID-19. In consideration of the testimony and evidence, the Referee finds that the employer offered the claimant a reasonable accommodation to her choice to avoid COVID-19 vaccinations for religious beliefs. The Referee finds that claimant has failed to show reasonableness for refusing to comply with the employer's directive to participate in the nasal swab testing for COVID-19. The Referee finds that the employer has shown that the claimant was discharged for insubordination, an act of willful misconduct in accordance with the law.

(Employer's Br., Ex. C at 76.)

Claimant appealed to the Board, which affirmed the Referee's decision by Order dated September 14, 2022. Claimant appealed to this Court, and on March 31, 2023, the Board requested, with Claimant's consent, that we remand the case. The Board averred that remand was necessary because "it would appear that the Board misapplied the law in rendering its decision and now desires to review its determination and issue a new decision, from which the aggrieved parties retain all appeal rights." (R.R. at 260a.) This Court remanded the case in accord with the Board's request.

By Decision and Order mailed September 20, 2023, the Board vacated its September 14, 2022 order, reversed the Referee's June 10, 2022 decision, and deemed Claimant eligible to receive UC benefits. In doing so, the Board relied on this Court's decision in Kaite v. Unemployment Compensation Board of Review, 175 A.3d 1132 (Pa. Cmwlth. 2017), for the proposition that an "[employee's] religious beliefs are protected . . . [s]o long as there is sufficient evidence that [her] beliefs are sincerely held . . . and conflict with the [employer's] employment requirement, that is the end of the matter." Id. at 1137. The Boad explained its rationale as follows:

The claimant was granted a religious exemption from obtaining the COVID-19 vaccine but was terminated for refusing the nasal swab testing for the same reason. The claimant credibly testified, "I was not willing to compromise the integrity of my mucus membranes and most importantly my sincerely held religious beliefs which is the integrity of my conscience and my soul. It's an invasive procedure with a foreign object-possible foreign substances. That's a violation of the standard [inaudible] of my religion part of my relationship with God." Notably, the claimant has had a religious exemption for the flu vaccine since 2018, does not permit her blood to be taken, and offered an alternative method of saliva testing, but the employer refused.

Based on the foregoing, the Board finds the claimant's belief against an invasive procedure with a foreign object to be sincerely held and is religious in nature. While the employer had every right to terminate the claimant's employment for failing to follow its policy, the Board cannot find that the claimant committed willful misconduct such as to deny her unemployment compensation benefits.

(Employer's Br., Ex. A at 61.)

Employer filed a motion for reconsideration on October 5, 2023, in which it discussed applicable caselaw and argued that the Board's September 20, 2023 decision and reliance on Kaite was erroneous. (R.R. at 216a.) By order mailed October 20, 2023, the Board denied Employer's motion for reconsideration and stated that its order issued on September 20, 2023 stands as final. This appeal followed.^[3]

II. Issues

On appeal, Employer challenges the Board's determination that Claimant is eligible to receive UC benefits, where her refusal to submit to nasal swab testing for COVID-19 amounted to willful misconduct. According to Employer, Claimant's objections to the testing requirement were based on medical and personal autonomy concerns, rather...