Blue Cross faces flurry of new lawsuits over vaccine mandate

Dozens of former Blue Cross Blue Shield of Michigan employees have sued the state's largest insurer over its COVID-19 vaccine mandate.

At least 49 former employees have filed suit in recent weeks in district courts in Detroit, Grand Rapids and Wisconsin. All the plaintiffs allege religious discrimination by the Detroit insurer after it denied some people religious exemptions from receiving the vaccine and terminated them on Jan. 5 this year.

All 49 plaintiffs are represented by Hurwitz Law PLLC in Ann Arbor.

Principal Noah Hurwitz said his law firm represents 215 former BCBSM employees and anticipates filing a lawsuit for each individual, stating that because the denied exemptions were tailored to each individual, they cannot file jointly in a class action lawsuit.

The lawsuits follow approval from the Equal Employment Opportunity Commission, which must sign off on complaints before an individual can file a lawsuit alleging discrimination based on race, sex or religion. Hurwitz said the approvals are trickling in from the EEOC, hence why only 49 of the planned 215 lawsuits have been filed.

BCBSM said in a statement it anticipated the lawsuits.

"Like other companies that have enacted vaccine requirements, we had an expectation that a lawsuit could be filed," BCBSM said in a statement sent to Crain's. "As an employer, we enacted a vaccine requirement for the health and safety of our employees. We did not arrive at this decision lightly. We value and respect all our employees and recognize there are strong and diverse views on the issue of the vaccine. We also recognize our responsibility to do our part as a healthcare leader to address COVID-19 in our communities."

The plaintiffs allege BCBSM permitted religious exemptions for hundreds of other workers but denied their requests on an arbitrary basis.

"(BCBSM) conducted a series of ambush-style interrogations with employees who submitted religious and medical accommodation requests," said a lawsuit by Ryan Romano, a former healthcare manager at BCBSM, filed in Eastern District Court in Detroit on Nov. 30.

The lawsuit alleges BCBSM asked whether those seeking a religious exemption took aspirin, Sudafed, Tums or Tylenol to prove their "sincerely-held religious belief" didn't hold up.

The mRNA vaccines from Pfizer and Moderna were tested using embryonic kidney cells. Acetaminophen is also tested on that same line of cells pulled from aborted fetuses in the 1970s.

Many religious exemption requests during the pandemic came from people involved in certain sects of Catholicism or other religions that morally object to the use of embryonic stem cells in any fashion.

The Vatican publicly supported the use of COVID-19 vaccines but has said the choice to vaccinate should be voluntary.

Under Title VII of the Civil Rights Act, employers only have to accommodate religious beliefs that are sincerely held. That definition is broad and it's generally accepted that all religious exemptions sought by employees are valid.

But under the EEOC, companies are allowed to question those beliefs if the employee has behaved in a manner in opposition to those beliefs or if an exemption is sought for secular reasons. Companies can also ask for appropriate documentation from the employees' religious leaders.

Hurwitz said the employees have a case because BCBSM allowed for some religious accommodations and not others.

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"They conducted 10- to 15-minute interviews in a totally arbitrary way," Hurwitz said. "We've listened to interviews of those granted accommodations and those denied, and we can't figure out why the company granted some and not others. The whole process is devoid of any real formula and metric."

COVID vaccine mandate lawsuits have spiked in recent months as the EEOC approvals come streaming in — the process can take up to 10 months — after most employer-led mandates went into effect in late 2021.

As of September, there were more than 750 mandate lawsuits against employers, according to The National Law Review. Vaccine lawsuits, however, have rarely been successful. There are no known successful lawsuits yet over COVID vaccine mandates.

Some employers have settled out of court, however. In August, NorthShore University Health System agreed to pay a $10.3 million settlement to end a class-action lawsuit by 14 employees who were denied a religious exemption to the system's vaccine policy.

Some lawsuits against employers' flu vaccine requirements have succeeded in the past.

In 2016, Saint Vincent Health Center in Pennsylvania was ordered to pay $300,000 in back pay and compensatory damages to six former employees that were denied religious exemptions to the flu vaccine.

The EEOC alleged the health center denied all religious exemptions but allowed for medical exemptions, violating Title VII.

All of the cases against BCBSM are in the early stages of litigation, and it's unclear when an outcome would be reached.

This story first appeared in Crain's Detroit Business.