Las Vegas POA

Firefighter Fired For Refusing Vaccination, Accommodation

Written on 02/28/2020
Will Aitchison

Brett Horvath was employed as a driver/pump operator by the City of Leander Fire Department in Texas. Horvath is an ordained Baptist minister and objects to vaccinations as a tenet of his religion. In 2014, two years after he was hired, the Department adopted an infection control plan that directed fire department personnel to receive flu vaccines. Horvath sought an exemption from the directive on religious grounds, and the exemption was approved on the condition that Horvath use increased isolation, cleaning, and personal protective equipment to prevent spreading the flu virus to himself, co-workers, or patients with whom he may come into contact as a first responder. In 2015, he sought and received another exemption from the flu vaccine directive.

In 2016, the City mandated that all personnel receive a TDAP vaccine, which immunizes from tetanus, diphtheria, and pertussis (whooping cough). After months of discussions, on March 17, 2016, the City finalized its accommodation proposal and gave Horvath two options. Under the first option, he could be reassigned to the position of code enforcement officer, which offered the same pay and benefits and did not require a vaccine, and the City would cover the cost of training. The second option would allow Horvath to remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible diseases when his health condition justified it, and keep a log of his temperature.

Horvath declined the code enforcement job and suggested an alternative accommodation that would allow him to remain a driver/pump operator. He agreed with the City’s requirements with the exception of the requirement that he wear a respirator at all times. He instead proposed to wear it when encountering patients who were coughing or had a history of communicable illness. The Department rejected Horvath’s proposal and ordered him to accept one of the options it proposed. When Horvath refused, he was fired for insubordination. Horvath sued, claiming the Department impaired his freedom of religion as protected by the First Amendment and Title VII of the Civil Rights Act.

The federal Fifth Circuit Court of Appeals upheld Horvath’s termination. The Court began by setting the legal landscape for religious freedom cases in an employment context: “Title VII makes it unlawful for an employer to discriminate against an employee on the basis of religion. An employer has the statutory obligation to make reasonable accommodations for the religious observances of its employees, but it is not required to incur undue hardship. Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee.

“Once an employer has established that it offered a reasonable accommodation, even if that alternative is not the employee’s preference, it has satisfied its obligation under Title VII as a matter of law. An employee has a duty to cooperate in achieving accommodation of his or her religious beliefs, and must be flexible in achieving that end.

“In a prior case, we held that a medical center offered a reasonable accommodation to a counselor who sought to be excused from counseling on subjects that conflicted with her religious beliefs by giving her 30 days, and the assistance of its in-house employment counselor, to find another position where the likelihood of encountering further conflicts with her religious beliefs would be reduced. The City’s accommodation of Horvath here was more generous. Rather than simply permitting Horvath to apply for different positions in the Department, the City offered Horvath the opportunity to transfer to a code enforcement position that would not require him to receive vaccinations. The position offered the same salary and benefits as the driver/pump operator position.

“Horvath argues, however, that the accommodation was unreasonable because he believes the code enforcement officer position is the least desirable position in the Department because of its duties and hours. He also argues that the position was unreasonable because the schedule would prevent his continuing his secondary employment running a construction company, which would reduce his total income by half.

“Neither of these arguments are convincing. While Horvath and other Leander firefighters may prefer the hours and duties of traditional firefighting jobs, Title VII does not restrict an employer to only those means of accommodation that are preferred by the employee. And Horvath’s reduction in his income due to loss of an outside job does not render the accommodation unreasonable.”

Horvath v. City of Leander, 2020 WL 104345 (5th Cir. 2020).

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