Simon v. Indus. Claim Appeals Office of Colo.

• Docket Number: Court of Appeals No. 22CA1922
• Decision Date: 10 August 2023
• Citation: Simon v. Indus. Claim Appeals Office of Colo., 538 P.3d 756, 2023 COA 74 (Colo. App. 2023)
• Parties: Jessica SIMON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Bayada Home Health Care, Inc., Respondents.
• Court: Colorado Court of Appeals

538 P.3d 756

2023 COA 74

Jessica SIMON, Petitioner,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Bayada Home Health Care, Inc., Respondents.

Court of Appeals No. 22CA1922

Colorado Court of Appeals, Division VI.

Announced August 10, 2023

Jessica Simon, Pro Se

Philip J. Weiser, Attorney General, Evan P. Brennan, Assistant Attorney General, Tanya M. Santillan, Assistant Attorney General, Gabrielle Falcon, Assistant Attorney General Fellow, Denver, Colorado, for Respondent Industrial Claim Appeals Office

No Appearance for RespondentBayada Home Health Care, Inc.

Opinion by JUDGE LIPINSKY

¶ 1 Many employers throughout the country adopted mandatory COVID-19 vaccination policies when vaccines became available after the pandemic struck in 2020.Earlier this year, in Bara v. Industrial Claim Appeals Office , 2023 COA 19, ¶¶ 16, 24, 530 P.3d 416, 419-20, 421, a division of this court decided that an employee was disqualified from receiving unemployment benefits because she knew about her employer's vaccination policy, declined a COVID-19 vaccination, did not seek an exemption from the policy, and her employment was terminated as a result.The division in Bara affirmed the determination of the Industrial Claim Appeals Office(the Panel) that the employee was not entitled to benefits under section 8-73-108(5)(e)(VII), C.R.S. 2022, because she"[v]iolat[ed] ... a statute or ... a company rule which resulted or could have resulted in serious damage to the employer's property or interests."Bara , ¶¶ 12, 24, 530 P.3d at 419, 421.The division did not reach the Panel's alternative determination that the employee was also disqualified from receiving unemployment benefits under section 8-73-108(5)(e)(VI), which applies to employees who deliberately disobeyed "a reasonable instruction of [their] employer."SeeBara , ¶ 24, 530 P.3d at 421.

¶ 2 Today we extend the reasoning of Bara to hold that an employee who claims a religious exemption from her employer's COVID-19 vaccination policy and who is placed on unpaid leave after refusing to sign her employer's religious exemption form likewise is not entitled to receive unemployment benefits.Under such circumstances, the employee is barred from receiving benefits under section 8-73-108(5)(e)(VI) because she deliberately disobeyed her employer's reasonable instruction that she either get vaccinated or complete and sign the exemption form.

¶ 3Jessica Simon, a registered nurse, seeks review of the Panel's final order affirming a hearing officer's decision disqualifying her from unemployment benefits.We affirm the Panel's order.

I.Background

¶ 4 Simon worked for Bayada Home Health Care, Inc.(Bayada) from January to October 2021.Bayada is a home health care agency licensed by the Colorado Department of Public Health and Environment(CDPHE).The applicable CDPHE regulations required home health agencies such as Bayada to maintain proof of their employees’ immunizations or "[d]ocumentation of a religious exemption, as defined by facility policy."Dep't of Pub. Health & Env't Ch. 2, Rule 12.2.4(C),6 Code Colo. Regs. 1011-1(effective Aug. 30, 2021).In compliance with CDPHE'sCOVID-19 vaccine regulations, Bayada adopted a policy requiring its employees either to be fully vaccinated against COVID-19 or to complete a medical or religious exemption form by October 31, 2021.

¶ 5 Simon declined to get vaccinated due to her religious beliefs.Although Simon knew Bayada's vaccination policy and completed Bayada's religious exemption form, she refused to sign it.Despite multiple warnings that Bayada would place her on unpaid leave if she did not sign the exemption form, she continued her refusal and was placed on unpaid leave in October 2021.

¶ 6 Simon applied for unemployment benefits.A deputy for the Division of Unemployment Insurance(the Division) concluded that Simon was disqualified from unemployment benefits on the grounds that she was at fault for her job separation because she refused to sign a form that would allow her to continue working with other accommodations despite remaining unvaccinated.(The parties do not contest that Bayada's placement of Simon on unpaid leave constituted a "separation."For this reason, we assume that a "separation from employment" occurred for purposes of determining Simon's eligibility for unemployment benefits.See§ 8-73-108(5)(e).)The Division issued a notice of determination that Simon was disqualified from benefits under section 8-73-108(5)(e)(XX)(addressing an employee's failure to meet established job performance standards).

¶ 7 Simon appealed her disqualification and was granted a hearing, at which she and two witnesses for Bayada testified.Simon asserted that getting the COVID-19 vaccine would violate her religious beliefs and that Bayada would have reduced her work hours if she had signed the exemption form.She also said she objected to the language in the exemption form holding Bayada harmless from "any claims for their inability to accommodate my request due to undue hardship, direct threat, or state/local regulatory reasons."Simon asserted that such language was "illegal."

¶ 8Susanne Anderson, a director at Bayada, said that Bayada does not disclose an employee's vaccination status to clients and that some of its unvaccinated employees who had received religious exemptions continued to see patients and "were staying very busy."

¶ 9Briell Taylor, another Bayada employee, testified that the "State" mandated that home health care providers such as Bayada submit signed exemption forms from its employees who declined to be vaccinated for religious reasons.Taylor also testified that, because none of Bayada's employees were guaranteed hours, Simon was incorrect in asserting that signing the form would have "impede[d] her hours."

¶ 10 Based on the evidence presented at the hearing, the hearing officer found in February 2022 that Simon had acted knowingly in refusing to sign the exemption form and was aware that her refusal to provide the signed form would place her employment in jeopardy.The hearing officer was not persuaded that a reasonable person similarly situated to Simon would have refused her employer's instruction to sign the form and found that Simon's refusal to sign the exemption form, if she chose to remain unvaccinated, was fully under her control.For these reasons, the hearing officer concluded that Simon was at fault for her job separation and was therefore disqualified from receiving benefits under section 8-73-108(5)(e)(VI).

¶ 11 Simon appealed to the Panel, which affirmed the hearing officer's decision.

¶ 12 After the Panel issued its decision, the hearing officer reconsidered his decision on the grounds of an apparent error.He scheduled a second hearing, at which the hearing officer announced that he would not consider certain evidence and testimony because Bayada had not provided it in advance.There is no indication that the hearing officer or the Panel relied on such evidence in their final determinations, and our decision does not rest on any of the excluded evidence.

¶ 13 In his reconsidered decision, the hearing officer reaffirmed his original determination that Simon was disqualified from receiving unemployment benefits.He concluded that, even in the absence of the excluded evidence, Bayada had shown that its vaccination policy was reasonable and that Simon had not established discrimination based on her religious beliefs.Importantly, the hearing officer found that Simon had not "presented sufficient evidence that other individuals sharing the same beliefs as hers would have found the employer's instruction to be unreasonable."The hearing officer concluded that, because Bayada "was acting in accordance with a mandate issued by a state regulatory agency," Bayada's instruction to Simon to submit a signed exemption form was objectively reasonable.

¶ 14 On review, the Panel affirmed the hearing officer's reconsidered decision.It found that Simon deliberately refused an instruction that a reasonable person similarly situated would not have refused and, therefore, the disqualification was proper under section 8-73-108(5)(e)(VI).Additionally, citing Biden v. Missouri , 595 U.S. 87, 90–92, 142 S. Ct. 647, 651, 211 L.Ed.2d 433(2022), the Panel noted that COVID-19 vaccine mandates "pertinent to health care providers receiving Medicare or Medicaid Funds are legal and valid—although, they must allow religious exemptions."

¶ 15The Panel also addressed Simon's religious discrimination arguments, noting that, at the time, guidance from the Equal Employment Opportunity Commission regarding vaccine mandates did "not support [Simon's] objection."SeeU.S. Equal Emp. Opportunity Comm'n, What You Should Know AboutCOVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws(2021), https://perma.cc/2LYE-3GMZ.

¶ 16The Panel further explained that, under Biden , there were compelling health reasons for the mandate, including "data showing that the COVID-19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated."Biden , 595 U.S. at 91, 142 S. Ct. at 651.Accordingly, consistent with Biden , providers must "ensure that their covered staff are vaccinated against COVID-19 ....A [provider]’s failure to comply may lead to monetary penalties, denial of payment for new admissions, and ultimately termination of participation in the programs."Id.As the Panel noted, Bayada required only that Simon sign the religious exemption form, and she refused to do so.

II.Analysis

¶ 17 Simon, proceeding pro se, asks us to set aside the Panel's order, arguing that Bayada engaged in religious discrimination by ordering her to sign the exemption form if she remained unvaccinated.She specifically contends as follows:

• Signing the exemption form would have allowed Bayada to limit her hours and reduce her assignments.

• Bayada discriminated

...