Ninth Circuit Sets its Own Religious Sincerity Standard for Vaccine Objections
By Leah Trahan
As employers likely remember, employees in the COVID era often requested accommodation from COVID-19 protocols. These requests proposed challenges to employers trying to protect their workforce while not running afoul of employment laws, such as the Americans with Disabilities Act (ADA) or Title VII. Half a decade later, courts are still grappling with these issues, including trying to answer the question “what is a bona fide religious belief that an employer must attempt to accommodate?” Recently, a Ninth Circuit panel weighed in.
Sherry Detwiler was employed at a medical center in Oregon. When the Center required their employees to vaccinate, Detwiler requested a religious accommodation. But the accommodations offered by the Center – that Detwiler wear PPE and submit to weekly nasal swab testing – did not satisfy Detwiler. She claimed the substance used to sterilize the swabs was carcinogenic. As a Christian, said Detwiler, she was required to protect her body from “defilement” because her “body was a temple” according to a Biblical passage and confirmed by prayer. But when Detwiler and the Center ultimately could not arrive at an alternative accommodation, Detwiler was terminated. Detwiler sued, claiming the Center failed to accommodate her religious belief.
The Ninth Circuit concluded Detwiler’s stated beliefs were not enough to allow the case to proceed. A complaint of religious discrimination, said the Court, “must connect the requested exemption with a truly religious principle” through more than “broad, religious tenets.” In Detwiler’s case, while her belief that her body is a temple might be a sincere religious belief, her belief that the testing swab contained carcinogenic material was “premised on her interpretation of medical research” and “far too attenuated” from the broad religious belief to recognize it as requiring protection under Title VII.
But the Ninth Circuit covers primarily Western states (e.g., California, Oregon, and Washington), and other courts examining similar cases have viewed things differently. For example, the Eighth Circuit concluded a testing case could move forward because the employee connected their testing objection to specific religious principles. The Sixth Circuit opined an employee need only plausibly explain that the refusal to vaccinate was an “aspect” of “religious observance,” “practice,” or “belief.” And a panel of the Seventh Circuit concluded under similar circumstances that the religious vocabulary used may be sufficient to connect a medical concern with religious beliefs. Stay tuned to see how other Circuits might view the issue and if the United States Supreme Court will weigh in.
DOL Issues Four Opinion Letters Addressing Joint Employment, Tip Pooling, Emergency Pay and FMLA Leave
On Sept. 30, 2025, the Department of Labor’s (DOLs) Wage and Hour Division issued four new opinion letters addressing the application of federal labor standards. These opinion letters take real-world questions and apply federal labor laws to specific factual circumstances to clarify the DOL’s position.
Joint Employment
In opinion letter FLSA2025-05, the DOL found that a hostess employed at a restaurant and member’s only club was jointly employed by both. The restaurant and club shared common ownership, management, and operations, and operated on two separate floors of the same hotel. The DOL noted that even if two or more entities are considered separate employers, they can nonetheless be “joint employers” under the Fair Labor Standards Act (FLSA) if they have related employment relationships with the same employees. This typically occurs when employers are “sufficiently associated with respect to the employment of the particular employees.”
The DOL found that the operational integration between the restaurant and club (including their proximity, common kitchen, similar menus and shared managers and owners); the fact that the hostess could clock in with one employer and be directed to work at the other; the employers identical rates of pay; and the non-conflicting shifts offered by both; showed that the two employers were sufficiently associated to be considered joint employers of the hostess.
Notably, when an employee is jointly employed by two or more employers, all hours the employee works for the joint employers must be combined for calculating hours for the workweek for overtime purposes and the employers are jointly and severally liable for compliance with the FLSA, meaning the employee can collect overtime pay from both employers.
Other Opinion Letters
In the other opinion letters, the DOL found that "front of house" oyster shuckers are employed in a tipped occupation and therefore the employer may require other employees to share tips with the shuckers (FLSA2025-03); that emergency pay provided to firefighters cannot be excluded from the regular rate of pay for purposes of calculating overtime because the payments are not within the sole discretion of the employer and do not fit within any statutory exclusion (FLSA2025-04); and, that when calculating Family Medical Leave Act (FMLA) leave hours for employees working abnormal shifts, the employer should base the calculations on the employee's actual, normally-scheduled workweek, including mandatory overtime but not including additional voluntary hours (FMLA2025-02-A).
EEOC Adjusts Civil Monetary Penalty for Violation of Notice-posting Requirements
On Sept. 30, 2025, the Equal Employment Opportunity Commission (EEOC) announced a new Final Rule that increases the maximum civil penalty for violation of the notice-posting requirements in Title VII, the ADA, GINA and the Pregnant Workers Fairness Act (PWFA), from $680 to $698 per violation, effective immediately. Violations can occur when employers fail to post notices describing the pertinent provisions of these laws in prominent and accessible places where they customarily maintain notices to employees, applicants, and members.
