May 18, 2022

Volume XII, Number 138

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Michigan Federal Court Denies Employee’s Attempt to Stave off Termination for Failing to Receive COVID-19 Vaccine on Religious Grounds

A recent court decision bolstered the position of employers who take a strict position on enforcing COVID-19 vaccine mandates. Specifically, on January 3, 2022, the U.S. District Court for the Eastern District of Michigan denied an employee’s motion for a preliminary injunction, asking the court to prevent his employer, Blue Cross Blue Shield of Michigan (BCBSM), from terminating his employment due to his refusal to receive a COVID-19 vaccine based on religious grounds.

In the case, Ryan Romano v. Blue Cross Blue Shield of Michigan, the employee, Mr. Romano, alleged that he was set to be fired on January 4, 2022 if he did not receive a COVID-19 vaccine, despite his religious objection to receiving it. BCBSM indeed enforces a policy requiring its employees to receive the COVID-19 vaccine or face consequences, and although the policy allows for certain religious exemptions, Mr. Romano claimed that he had been improperly denied such an exemption. 
Mr. Romano filed his lawsuit in December 2021—before the potential termination date—and sought a preliminary and permanent injunction preventing his termination, on grounds that BCBSM’s COVID-19 vaccine policy violates federal and state civil rights laws, as well as the U.S. and Michigan Constitutions. 

In a concise opinion, the court denied Mr. Romano’s motion because he failed to show immediate and irreparable harm. As the moving party, the court held that Mr. Romano’s irreparable injury must be both certain and immediate, not speculative or theoretical. The court noted that a plaintiff suffers irreparable harm from the denial of a preliminary injunction if the harm is not fully compensable by monetary damages.

Here, Mr. Romano claimed that his damages were irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer “spiritual distress” should the court deny his motion. The court, however, disagreed for three reasons.

First, the court found that lost employment is not irreparable because income that is wrongly withheld may be recovered through monetary damages in the form of back pay, calculated to an exact amount. The court stated that preliminary injunctive relief is uncommon in the context of employment discrimination actions under Title VII because money damages are available as compensation for the loss of income, and that even in the midst of the COVID-19 pandemic, courts have routinely rejected the argument that lost employment constitutes irreparable damage.

Second, the court noted that loss of prestige, seniority, and reputation are not irreparable.  The court stated that in the employment context, showing that an employee’s “reputation would be damaged ... falls far short of the type of irreparable injury” that requires a preliminary injunction, and loss of seniority is not irreparable because Mr. Romano can always receive “retroactive pay increase[s] and retroactive seniority” as damages.

Third, the court found that Mr. Romano failed to show that any alleged spiritual distress is irreparable. Noting that it was sympathetic to religious persons who must confront the “impossible choice,” the court found that Mr. Romano never developed a convincing argument for why an injury attributable to an “impossible choice” is irreparable. For one, he only cited cases enjoining government—as opposed to private—COVID-19 mandates, which matters because the First Amendment’s protections do not extend to private companies like BCBSM. Without government action underlying BCBSM’s vaccine mandate, the court found that Mr. Romano failed to show that his “impossible choice” injury is irreparable because loss of employment due to purely private action can be remedied with money damages and back pay.

In the end, the court found that Mr. Romano’s motion was unnecessary because he can be fully compensated with monetary damages if his discrimination lawsuit against BCBSM ultimately succeeds. 

The court’s denial of Mr. Romano’s preliminary injunction does not mean that he cannot proceed with a lawsuit seeking monetary damages after actually being terminated. However, it does mean that the court was unwilling to step in before the fact and force the employer to hold off on an individual employment decision. It highlights the hesitation of courts to interfere with private employers’ decisions to implement vaccine mandates. While this particular matter was decided in the employer’s favor, the tension between COVID-19 related worker requirements and religious accommodation rights is sure to persist as a source of dispute for the foreseeable future. Employers with questions regarding workplace policies or exposure to potential liability caused by COVID-19 should consult with experienced employment counsel.

© 2022 Foley & Lardner LLPNational Law Review, Volume XII, Number 10
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About this Author

Mikle Jew Financial Attorney Foley Lardner
Associate

Mikle Jew is an associate with Foley & Lardner LLP. He is a member of the firm’s Business Litigation & Dispute Resolution, Antitrust, Bankruptcy & Business Reorganization, and IP Litigation Practices. Prior to joining Foley as a summer associate in 2016, Mikle worked on international antitrust litigation and reinsurance contracts as a legal intern for AnJie Law Firm in Beijing, China.

858.847.6814
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