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Simon v. Industrial Claim Appeals Office.

2023 COA 74. No. 22CA1922. Unemployment Benefits—Disqualification—Insubordination—COVID-19—Religious Exemption From Immunization Requirements.

August 10, 2023

Simon is a registered nurse who worked for Bayada Home Health Care, Inc. (Bayada). Bayada, as a home health care provider, was required to follow the Colorado Department of Public Health and Environment’s emergency COVID-19 rules. Those rules required home health care agencies to maintain proof of their employees’ immunizations or documentation of their religious exemption from immunizations, as defined by the facility’s policy. Bayada adopted a policy requiring its employees to either be fully vaccinated against COVID-19 or complete a medical or religious exemption form. Simon informed Bayada that she would not receive a COVID-19 vaccine based on her religious beliefs but refused to sign Bayada’s religious exemption form. Bayada then placed Simon on unpaid leave. Simon applied for unemployment benefits. The Division of Unemployment Insurance concluded that Simon was disqualified from unemployment benefits because she was at fault for her job separation by refusing to sign the medical or religious exemption form. A hearing officer subsequently concluded that Simon was at fault for her job separation and was thus disqualified from receiving benefits under CRS § 8-73-108(5)(e)(VI). A panel of the Industrial Claim Appeals Office (panel) affirmed, finding that Simon deliberately refused an instruction that a reasonable person similarly situated would not have refused, so the disqualification was proper under CRS § 8-73-108(5)(e)(VI).

On appeal, Simon argued that Bayada engaged in religious discrimination by ordering her to sign the exemption form if she remained unvaccinated, so its order must be set aside. She maintained that (1) signing the exemption form would have let Bayada limit her hours and reduce her assignments, (2) Bayada discriminated against her based on her religion by placing her on unpaid leave for refusing to sign the exemption form, (3) the exemption form had illegal provisions, and (4) Bayada violated her Fifth and Fourteenth Amendment rights and her right to privacy by advising clients that they could request care from vaccinated-only clinicians. The court of appeals determined that an employee who claims a religious exemption from an employer’s COVID-19 vaccination policy and who is placed on unpaid leave after refusing to sign the employer’s religious exemption form is barred from receiving benefits under CRS § 8-73-108(5)(e)(VI) because such employee deliberately disobeyed the employer’s reasonable instruction to either get vaccinated or complete and sign the exemption form. Here, the evidence supported the hearing officer’s conclusions that signing the exemption form would not have impacted Simon’s hours or working conditions and that Bayada did not treat Simon differently from other employees because of her religious beliefs. Further, Simon failed to establish that Bayada forced her to agree to allegedly illegal provisions in the exemption form. Lastly, while Simon did not preserve her arguments regarding the Fifth and Fourteenth Amendments and the right to privacy, the record evidence shows that Bayada did not disclose to clients which of its employees were or were not vaccinated, and Bayada made clear to Simon on numerous occasions that her failure to sign the religious exemption form would result in her job separation. Simon had the ability to choose whether to become vaccinated or to sign the religious exemption form, so her placement on unpaid leave was within her control and thus volitional. Therefore, the panel did not err by determining that Simon was disqualified from receiving unemployment benefits under CRS § 8-73-108(5)(e)(VI).

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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