The panel affirmed (1) the district court’s dismissal, on qualified immunity grounds, of Brittany K. MacDonald’s Free Exercise claim; and (2) the district court’s summary judgment for Oregon Health and Science University (“OHSU”) on MacDonald’s Title VII failure to accommodate claim, in her action challenging the denial of her request for a religious exemption from a COVID-19 vaccination policy.

​

Pursuant to Executive Order No. 21-29 issued by Oregon Governor Kate Brown, which required all healthcare workers in Oregon’s healthcare facilities to be vaccinated against COVID-19, OHSU required all OHSU personnel to be vaccinated by October 18, 2021, unless an individual received an approved religious or medical exemption. An email notice sent to employees who had requested an exemption provided examples of beliefs that do not qualify for a religious exemption, including “[a]n objection to the vaccine on the basis of fetal cell concerns, either in the vaccines or in testing and development.”

MacDonald, who was a registered nurse at Doernbecher Children’s Hospital of OHSU, requested a religious exemption, asserting, in part, that her “beliefs regarding the sanctity of life conflict directly with any requirement to inject abortion derived cell lines into [her] body.” After her exemption request was denied, and she was terminated for failing to be vaccinated, MacDonald filed suit alleging (1) a 42 U.S.C. § 1983 Free Exercise claim against individuals who served on the OHSU Board of Directors and members of OHSU’s Vaccine Exception Review Committee (collectively, the “Individual Defendants”); and (2) a 42 U.S.C. § 2000e-2(a)(1) Title VII failure to accommodate her religious beliefs claim against OHSU.

​

The panel held that the Individual Defendants were entitled to qualified immunity on MacDonald’s Free Exercise claim because the right to refuse a state-mandated vaccine by a healthcare worker who works in-person with vulnerable populations due to allegedly religious concerns about fetal cells and bodily integrity or sanctity was not clearly established at the time the Individual Defendants denied MacDonald’s religious exemption.

The panel next affirmed the district court’s summary judgment for OHSU on MacDonald’s Title VII failure to accommodate claim because OHSU demonstrated that it could not have accommodated MacDonald without undue hardship. OHSU’s evidence established that the health and safety risks posed to OHSU’s patients and employees presented a substantial hardship in the context of its business, and accommodating MacDonald would have imposed substantial operational and financial costs on OHSU.

​

Addressing MacDonald’s pretext arguments, the panel wrote that there is no precedent that imports a “pretext” or “discriminatory motives” analysis into the “undue hardship” failure to accommodate analysis. And even if pretext were a part of the analysis, MacDonald failed to present a triable issue of material fact establishing that OHSU’s demonstrated substantial economic and noneconomic costs in allowing MacDonald to work while unvaccinated were mere pretext.

​

Dissenting, Judge Tung wrote that the defendants’ conduct here plainly violated established law prohibiting the targeting of a person’s religious beliefs. The policy singled out an employee’s religious objection to abortion and the use of fetal tissue as categorically undeserving of any consideration, which is a classic case of the State targeting religious beliefs and is never permissible. Because MacDonald had a right to be free from the State’s targeting of her religious belief (against the use of aborted fetal cells) by deeming such a belief not “religious” at all and thus not worthy of consideration for an exemption, the Defendants should have been denied qualified immunity.

​

https://cdn.ca9.uscourts.gov/datastore/opinions/2026/10/02/24-4852.pdf