Appeals court rules against Texas FF fired after refusing vaccine

The fired firefighter and Baptist minister claimed his termination constituted a violation of his religious freedom


Chuck Lindell
Austin American-Statesman

LEANDER, Texas — A federal appeals court on Thursday rejected a legal challenge by a Leander firefighter who lost his job in 2016 after refusing to be vaccinated for religious reasons.

Brett Horvath, who also was an ordained Baptist minister, argued that Leander's action violated his First Amendment right to freely practice his religion, which opposes vaccinations.

Former Leander Fire Department Firefighter Brett Horvath claimed his religious freedom was violated following a dispute over a vaccine policy that resulted in his termination. A federal appeals court ruled against Horvath this week, nothing that he was offered alternate accommodations. (U.S. Air Force photo by Airman 1st Class Alexxis Pons Abascal)
Former Leander Fire Department Firefighter Brett Horvath claimed his religious freedom was violated following a dispute over a vaccine policy that resulted in his termination. A federal appeals court ruled against Horvath this week, nothing that he was offered alternate accommodations. (U.S. Air Force photo by Airman 1st Class Alexxis Pons Abascal)

But the 5th U.S. Circuit Court of Appeals disagreed, ruling that the Williamson County city properly tried to accommodate Horvath's religious objections by suggesting alternatives that the firefighter rejected before he was fired.

"Once an employer has established that it offered a reasonable accommodation, even if that alternative is not the employee's preference, it has satisfied its obligation," Judge James Dennis wrote for the court's three-judge panel.

Judge James Ho, former solicitor general for the Texas attorney general's office who was nominated to the appeals court by President Donald Trump in 2018, wrote a dissenting opinion that disagreed with part of the ruling. Ho said he would have returned Horvath's lawsuit to a lower court to consider whether Leander's vaccination policy violated his right to the free exercise of religion.

Leander hired Horvath in 2012 and twice granted him religious exemptions when fire personnel were required to get flu shots beginning in 2014, court records show.

The disagreement arose when the city adopted a 2016 policy requiring all personnel to receive the TDAP vaccine, which immunizes against tetanus, diphtheria and pertussis (whooping cough).

This time, however, when Horvath sought an exemption, Leander responded by offering two options:

— He could become a code enforcement officer, which offered the same pay and benefits but did not require a vaccine, with the city paying for any needed training.

— He could remain a firefighter if he agreed to wear a surgical mask while on duty, be tested for diseases as necessary and keep track of his body temperature.

Horvath declined the code enforcement job and suggested an alternate accommodation, agreeing to all conditions to keep his firefighting job except wearing a mask during his entire 24-hour shifts. Instead, he proposed wearing it as needed, such as while treating patients who were coughing or had a history of illness.

Fire Chief Bill Gardner refused to renegotiate and again offered the same two options. When Horvath rejected both, he was fired.

Horvath sued Leander and Gardner, arguing that his firing amounted to religious discrimination and violated his religious freedom.

At Leander's urging, Judge Robert Pitman dismissed Horvath's lawsuit in October 2018, and the former firefighter appealed.

In an opinion released Thursday evening, the 5th Circuit Court upheld Pitman's decision, ruling that Leander acted properly when it tried to accommodate Horvath's religious beliefs by offering a new job with equal pay and benefits.

In addition, the court said the mask requirement did not violate Horvath's right to practice his religion — "instead, it would have enabled him to freely exercise his religion while maintaining his current job."

"Horvath's right to freely exercise his religious beliefs was not burdened at all by the proposed (mask) accommodation," the court ruled.

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©2020 Austin American-Statesman, Texas

McClatchy-Tribune News Service

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