OAK RIDGE, Tenn. — UPDATE (10/15/21): A federal judge has issued a temporary restraining order halting Oak Ridge National Laboratory's contracted operator, UT-Battelle, from placing employees with approved medical or religious exemptions on unpaid leave for not getting the COVID-19 vaccine until a preliminary injunction hearing can be held.
Six employees at the Oak Ridge National Lab (ORNL) filed a class-action lawsuit against UT-Battelle over the COVID-19 vaccine mandate earlier this week.
On Friday evening, East Tennessee District Judge Charles Atchley considered an application for a restraining order filed by the plaintiffs, partially granting it.
The judge granted one motion to temporarily halt UT-Battelle until October 29 from terminating or placing an employee on indefinite unpaid leave if they have already received a religious or medical exemption.
It denied the plaintiff's other motions to try and halt the mandate for any employee in the process of requesting an accommodation to the new vaccine policy while UT-Battelle processes the employees' requests -- saying the request was overly broad and failed to demonstrate specific, irreparable harm.
The plaintiffs were ordered to pay $5,000 bond by October 18, and the court will hold another hearing on October 26 to determine if it will issue a preliminary injunction to formally block the mandate.
The court filing said the partial request does not imply or suggest that the court will grant that injunction, but found that ORNL's policy as it currently stands could potentially cause irreparable harm based on the employee's argument, who claimed they would lose benefits, security clearances, and their ability to pay for housing and education.
"However, the Court also notes that further factual findings might alter this determination," it said.
According to the initial lawsuit, these employees claim there is a pattern of discrimination against those who request religious or medical accommodations from the mandate.
UT-Battelle is a limited liability company located in Oak Ridge that administers, manages and operates ORNL.
The lawsuit claimed that rather than complying with its obligations under the Civil Rights Act and the American Disabilities Act, UT-Battelle responded by informing the requesting employees that they would be effectively terminated.
The lawsuit also explained that UT-Battelle's actions have left these employees with the "impossible choice of either taking the COVID-19 vaccine, at the expense of their religious beliefs and their health, or losing their livelihoods. In doing so, UT Battelle has violated Title VII and the ADA by failing to engage in the interactive process and provide reasonable accommodations, and also by retaliating against employees who engaged in protected activity."
Jeffrey Bilyeu, a senior radiological control technician; Jessica Bilyeu, a quality representative; Stephanie Bruffery, a radiochemical engineer; Mark Cofer, an infrastructure engineer; Gregory Sheets, an R&D staff member; and William Webb, an intelligence support specialist, all employed by UT-Battelle, requested religious accommodations from the vaccine mandate, to which UT-Battelle responded by offering only an indefinite period of unpaid leave as a “reasonable accommodation,” according to the lawsuit.
Cofer requested a medical accommodation from the vaccine mandate, which remains pending. Sheets also requested a medical accommodation, which UT-Battelle denied, according to the lawsuit.
By Spring 2020, UT-Battelle implemented certain mitigation procedures, including requiring many employees to work from home due to COVID-19.
UT-Battelle also required many employees to receive a weekly COVID-19 test and required some employees to receive COVID-19 tests even on weeks when they worked entirely from home, according to documents. UT-Battelle also implemented precautions such as mask-wearing and social distancing.
On August 26, ORNL Director Thomas Zacharia announced via email that the lab will require all employees to receive the COVID-19 vaccine and on Sept. 1, UT-Battelle held a Vaccine Mandate Town Hall, according to the lawsuit.
On Sept. 13, UT-Battelle released a “Vaccine Requirement” fact sheet, which outlined an accommodation request process, according to the documents. Employees seeking accommodation were required to submit an accommodation request by Sept. 15.
Employees not approved for accommodation were required to be vaccinated on site at ORNL or, if vaccinated offsite, to email a copy of their vaccination record to UT-Battelle, according to the lawsuit.
For accommodation requests submitted by the Sept. 15 deadline, the status of at least some requests in ORNL’s Human Resources system was changed on Sept. 16, from “pending” to “declined,” according to the lawsuit. Later that same day, UT-Battelle removed the portion of its HR system that allowed employees to see the status of their accommodation requests.
On Sept. 16, Zacharia said in an email to all staff that accommodations such as face coverings and testing might not adequately protect staff. The lawsuit added that he "therefore threatened, before ORNL began any interactive process of interviewing employees with religious objections," that “staff members who are granted a religious exemption should be prepared to be on unpaid leave” beginning October 15, “potentially until the end of the pandemic.”
On Sept. 20 and 21, the documents said UT-Battelle conducted interviews for employees seeking reasonable accommodations.
On Sept. 22, ORNL HR Director Jody Zahn canceled all remaining interviews for employees seeking reasonable accommodations. Later that day, Zahn sent an e-mail titled “Exemption Request Decision,” blind-copying all employees who requested a reasonable accommodation from the vaccine mandate, according to the lawsuit.
In that email, Zahn said that "the only accommodation provided for religious accommodation requests would be indefinite unpaid leave".
On Oct. 1, UT-Battelle’s HR system was updated to reflect exemption request decisions and on Oct. 11, UT-Battelle began security clearance exit debriefing for “accommodated” employees, according to the lawsuit.
On Oct. 13, employees who were “accommodated” with unpaid leave were required to complete and submit a form electing to use all their remaining vacation days immediately or to begin unpaid leave on Oct. 16, according to the lawsuit. They were also required to complete and submit a form choosing whether to continue or cancel their benefits during unpaid leave.
According to the lawsuit, UT-Battelle employees must receive a COVID-19 vaccine by Oct. 15 or be placed on unpaid leave.
For UT-Battelle employees who are “accommodated” with unpaid leave, they must submit their badges on Oct. 15. The accommodation period of unpaid leave begins on Oct. 16, the lawsuit said.
According to the lawsuit, UT-Battelle’s mandate is absolute and there is no alternative for remote work, periodic testing, mask-wearing, or social distancing, even for employees who have already had COVID-19 and still have immunity from the disease and for employees who have worked remotely throughout the pandemic.
Employees who are “accommodated” for religious or health reasons may choose what may be several years of unpaid leave without benefits—effectively, constructive discharge or termination, according to documents.
The lawsuit claimed this policy from UT-Battelle contrasts with the Federal Government’s recent announcement that the Department of Labor is developing a rule to require certain large employers to mandate vaccination or periodic testing for its employees. UT-Battelle is not offering the option of periodic testing, either in general or for employees who receive accommodation.
According to the lawsuit, this policy also differs from the European Union’s digital COVID-19 certificate, which considers the following as equivalent: a COVID-19 vaccine; a negative COVID-19 test; or having previously recovered from COVID-19.
When UT-Battelle announced the vaccine mandate, it stated that employees could request accommodations for religious or health reasons, in line with Equal Employment Opportunity Commission guidance on private employers issuing such mandates.
The lawsuit also claimed that "UT-Battelle’s discriminatory and retaliatory actions will cause Plaintiffs various harms, including the substantial loss of income, inability to afford necessary medical care, loss of housing, loss of professional advancement opportunities, and other similar personal and professional harms."
Through the class action, plaintiffs said they seek to represent a class of all UT-Battelle employees who have requested or will request accommodations from UT-Battelle’s vaccine mandate and who have had those accommodation requests either formally or effectively denied and are faced with the decision of either taking the vaccine or suffering termination, including, indefinite unpaid leave.
While the exact class size is unknown to plaintiffs at this time, it is expected to exceed 150 employees, according to the lawsuit. Officials said that 5,500 staff members are employed at ORNL, and the lab hosts around 3,000 visiting scientists each year from over 60 countries.
In a statement, UT-Battelle said, "The health and safety of our staff has been UT-Battelle’s priority throughout the COVID-19 pandemic. Full vaccination of staff reflects our obligation to operate the Lab as safely as possible and a commitment to our community’s well-being."
UT-Battelle said all employees are required to have a current COVID-19 vaccination by Oct. 15 unless they have an approved religious or medical exemption.
It also said unvaccinated employees with approved medical exemptions will be accommodated consistent with the Americans with Disabilities Act. Employees with an approved religious exemption will be accommodated by being permitted to take vacation or go on unpaid leave, with a re-evaluation of circumstances after 60 days beginning Oct. 16.
UT-Battelle said if an employee chooses not to accept the offered accommodation, they would be free to resign or face termination for not complying with a safety-related condition of employment.
Officials said the vaccination rate is currently around 96% of all employees.