Ninth Circuit Weighs if Public Health Guidance Mandates Undue Hardship for Religious Vaccine Accommodations

The Ninth Circuit is considering whether reliance on public health guidance during the pandemic automatically constitutes an undue hardship for employers denying religious vaccine accommodations, a question that tests the scope of Title VII and Free Exercise rights in the post-Groff landscape.

The appeal arises from a trial in which a jury returned verdicts for six San Francisco Bay Area Rapid Transit District (BART) employees who sued after the agency denied their religious accommodation requests for its COVID-19 vaccine mandate.

BART argued that the Ninth Circuit’s September 2025 decision in Peterson v. Snohomish Regional Fire controls the outcome, asserting that public health guidance declaring vaccination safer than other interventions establishes an undue hardship as a matter of law.

BART’s counsel, James Hanlon, told the court that all BART workers and plaintiffs were essential employees benefiting public transit services. He argued that BART followed prevailing public health guidance, which instructed employers that vaccination was safer than any combination of other interventions.

Hanlon argued that the district court should have granted BART’s Rule 50 motion for judgment as a matter of law, contending there were no material disputed issues of fact and that the evidence was uncontroverted.

Plaintiffs’ counsel, Matthew McReynolds and Gage Fender, countered that Peterson involved distinct facts involving firefighters in confined spaces administering CPR who could not mask or distance, whereas BART employees had other options.

Fender specifically highlighted that the jury heard evidence that another storekeeper was accommodated by working remotely, and that BART’s policy allowed for unpaid leave of up to two years, which would have neutralized any threat posed by the employee’s religious objection.

The court pressed counsel on whether BART’s theory effectively meant that once a public health advisory is issued, religious rights have zero effect and employers can hide behind the statement as an end-all justification.

BART’s counsel insisted the agency went employee by employee, created a matrix of considered accommodations, and determined that only remote work could satisfy CDC standards, though no BART worker could work remotely.

The panel also addressed a cross-appeal regarding a Free Exercise claim under 42 U.S.C. § 1983, focusing on whether BART’s protocol for systematic review of religious exemptions was a law of general applicability.

Plaintiffs’ counsel argued the district court misstated the rule from Fulton v. City of Philadelphia by requiring unfettered discretion to find a violation, whereas the Ninth Circuit’s en banc decision in Fellowship of Christian Athletes v. San Jose Unified held that a discretionary mechanism to grant exemptions can be sufficient on its own.

The case was submitted for decision by the court following oral argument.