It was reasonable for an injured employee who is returning to work to refuse a job that accommodated his disability because he had personal and religious objections to getting a COVID-19 vaccine.
The Virginia Workers’ Compensation Commission (WCC) ruled against the city of Chesapeake and its insurer, PMA Management Corp. in their bid to restrict the employee’s workers’ compensation benefits because, they maintained, the man’s refusal of the job arranged for him was unreasonable. The WCC ruled that the employee’s refusal was reasonable and justified given his religious and personal objections to the vaccination.
John Holliday worked for the city as a groundskeeper before his compensable accident. After he recovered from surgery, a medical evaluation showed Holliday could not perform his pre-injury job. The city engaged a vocational rehabilitation expert to secure suitable selective employment for Holliday. The result was a job lead as a part-time production worker with a services firm, Eggleston.
The Eggleston job was within Holliday’s physical capacity. He went for an interview, successfully performed a trial run, and underwent a drug screening. He was offered the job and accepted. However, he was then told he must show proof that he had been vaccinated against COVID-19.
Holliday balked, stating that he would not take the COVID-19 vaccination for religious and personal reasons. He explained that he and his wife “don’t believe in putting anything in our body that we shouldn’t.” His wife did not have to take the vaccine for her job with the city of Virginia Beach and she did not want him to take the COVID vaccine. He testified, “And I just don’t feel there’s a need for it.”
Because Eggleston required the vaccination, Holliday withdrew his acceptance of the job.
Virginia law provides that if an injured employee refuses employment suitable to his capacity, the employee’s benefits can be restricted unless, in the opinion of the WCC, such refusal was justified.
The WCC noted that once an employer offers suitable employment, the burden of persuasion shifts to the employee to show justification for refusing the offer. The reasons must be such that a reasonable person desirous of employment would have refused the offered work.
However, the WCC continued, the determination of justification to refuse employment involves “a much broader inquiry than merely considering whether the intrinsic aspects of the job are acceptable to the prospective employee.” Justification to refuse an offer of selective employment “may arise from factors totally independent of those criteria used to determine whether a job is suitable for a particular employee.”
In finding that Holliday was justified, the WCC noted that the record offered no medical evidence that it was safe or advisable for Holliday to undergo the vaccination, nor was there any evidence that the employer required the COVID-19 vaccination of its employees.
The WCC further explained that the vaccine was relatively new at that time, and over the course of the pandemic it has been the subject of public controversy. Holliday wanted to work, as shown by his initial acceptance of the job and by submitting himself to the drug screen, the WCC added.
Bottom line: The requirement to take the vaccine conflicted with Holliday’s religious and personal beliefs. He was justified in declining to undergo this medical procedure in order to accept the job.
This WCC said the case was analogous to a 1990 appeals court case involving a worker’s refusal to undergo a bone scan out of concern for side effects. The court agreed that the bone scan was medically justified. However, the court noted, “The question is not whether the recommended procedure was justified, but whether the patient’s refusal to submit to it was justified. The matter of justification must be considered from the viewpoint of the patient and in light of the information which was available to him.” The court in 1990 found the claimant’s refusal to undergo the bone scan without further medical consultation and assurance was justified.
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