On April 18, 2022, the United States Supreme Court upheld an employer’s right to enforce a vaccine mandate resulting in the termination of the employee in Jonathan Dunn v. Lloyd J. Austin II, Secretary of Defense, et al.
Dunn, a Lieutenant Colonel in the Air Force Reserve, sought a religious exemption from the Air Force’s COVID-19 vaccine mandate. In seeking the exemption, Dunn claimed the “the vaccine ceased to be merely a medical intervention and took on a symbolic and even sacramental quality,” which he viewed as a “religious ritual.” Dunn’s decision to reject the COVID-19 vaccine was based on prayer and successfully recovering from the virus without medical intervention. These two events “reinforced” his views that he was “lead by the Holy Spirit in refusing the vaccine.” Dunn’s views on the COVID-19 vaccine were undermined by the fact he received numerous mandated vaccines during his military career without objection and he did not claim the COVID-19 vaccine violated the tenets of his Christian faith.
After the Air Force denied his request for religious exemption, Dunn sought a preliminary injunction, which the district and appellate courts denied. Dunn, who had been removed from his command for refusing to be vaccinated, urged the court to require the Air Force to deploy him on assignment regardless of his vaccination status and to reinstate his prior command of which he had been relieved. As determined by the district court and upheld by the appellate court, even if the vaccine mandate placed a burden on Dunn’s sincerely held religious belief, the Air Force had a compelling interest in requiring him to be vaccinated. Specifically, the vaccine prepared Dunn to deploy anywhere in the world with 72 hours’ notice, assuring military readiness, and protected the health and safety of all service members. The district and appellate courts also upheld the Air Forces’ decision to impose disciplinary action relieving Dunn of his command.
The Supreme Court issued an unsigned order without comment upholding the lower court decision denying Dunn’s request for an injunction: “The application for an injunction pending appeal presented to Justice Kegan and by her referred to the Court is denied.”The decision was not unanimous with three justices dissenting (Justice Thomas, Justice Alito, and Justice Gorsuch).
The federal courts consistently uphold employers’ right to require employees to receive vaccines and implement discipline for disregarding such policies even when a medical or religions exemption is sought. Before taking disciplinary action against employees for disregarding vaccine mandates, employers should: (1) engage in the interactive process with the employee; (2) consider all available accommodations; and (3) be up to date on state laws where employees reside, as various states have enacted legislation prohibiting employers from taking adverse action against unvaccinated employees.
We have a dedicated team that can answer workplace related COVID-19 questions, assist with drafting vaccine related policies and procedures, and monitor developments in this area as they occur. If you have any questions or need assistance, please contact us.