Snohomish firefighters appeal vaccine suspensions to Ninth Circuit

EVERETT — Eight Snohomish County firefighters who were placed on unpaid leave for refusing COVID-19 vaccination on religious grounds are fighting for their day in court — and their lawsuit could set a precedent for religious accommodation in the workplace.

After a federal judge dismissed their case in January 2024, the firefighters appealed to the U.S. Ninth Circuit Court of Appeals. Four appeared in person.

Oral arguments took place April 3 in Portland, where attorney Jennifer Kennedy argued the district court had “mishandled” the case and ignored evidence that the fire department could have reasonably accommodated the men without burden.

“This case really isn’t about COVID-19,” Kennedy said in an interview. “It’s about religious accommodation in the COVID era.”

The plaintiffs — David Petersen, Beau Watson, Jay Stickney, Evan Merritt, Kevin Gleason, Riley Korf, Norm Alan Peterson II and Ryan Stupey — each obtained a religious exemption to the state mandate requiring vaccination for health care workers. But Snohomish Regional Fire & Rescue, known in court documents as SURFER, placed them on indefinite unpaid leave, citing safety concerns.

In January 2024, U.S. District Judge Thomas Zilly granted summary judgment to SURFER, ruling the department was within its rights to deny the requested accommodation. The firefighters’ appeal to overturn that ruling is now under review at the Court of Appeals.

“The judge’s role at summary judgment isn’t to weigh the facts — it’s to ask whether a jury could,” Kennedy said. “This decision took that chance away.”

SURFER declined to comment Tuesday, citing ongoing litigation.

Lead plaintiff David Petersen, a longtime firefighter and driver-operator, said the department’s handling of the mandate forced him to choose between his job and his faith.

“This was a crisis of conscience,” Petersen said.

He said the decision to seek a religious exemption was deeply personal.

“Any major life decision, I always pray about it,” Petersen said. “Anything that just doesn’t feel right, I take to God.”

A 15-year fire service veteran and father of two, Petersen said he spent months praying with his wife and seeking spiritual clarity before ultimately declining the vaccine.

“It was just a lot of sadness, and we just didn’t understand why this was happening,” Petersen said. “We’re a special needs family. My son is on the autism spectrum, and to lose my pay and my benefits, it was devastating. It was devastating on every single one of our families.”

Petersen said he submitted a written statement outlining his beliefs, offered to mask and test regularly, and expected to be accommodated — until, suddenly, he wasn’t.

But in October 2021, just days after Gov. Jay Inslee’s vaccination deadline took effect, Petersen said he and others were abruptly informed via video message that they would not be accommodated. The decision left him devastated.

“None of it made sense,” Petersen said. “Everyone around SURFER, all the other fire districts around SURFER, were able to find a way to accommodate.”

Currently, Snohomish Regional Fire & Rescue employs 204 firefighters. Roughly 85% of their emergency calls involve some form of medical response, according to Shannon Phillips, the department’s attorney. At the April hearing, Phillips argued the department followed public health guidance during the 2021 delta wave when hospitals were full and COVID cases surged statewide.

“SURFER’s obligation was not to eliminate all risks of COVID,” Phillips said. “It was to say, can we have unvaccinated healthcare providers performing in their healthcare roles without imposing an undue burden.”

And at that time, the department decided it was an undue burden, Phillips said.

In fall 2021, nearly a quarter of SURFER’s EMTs sought exemptions, Phillips said. Ultimately, 11 firefighters were placed on unpaid leave. The department maintained that the risk of letting unvaccinated providers continue in their roles was too great.

But Kennedy pointed out that seven of the eight firefighters were eventually reinstated — within six months — after already serving nearly two years on the front lines of the pandemic while unvaccinated, using masking and safety protocols, she said.

During that time, they worked alongside unvaccinated firefighters from neighboring departments, she said, even before returning to their roles at Snohomish fire.

“They kept these men on the line safely for nearly two years, and then suddenly claimed they posed an undue hardship,” Kennedy said. “That’s the sham I’ve been hammering in this appeal.”

In April 2022, Snohomish Regional Fire and Rescue’s Board of Commissioners voted to allow workers to return to the job starting June 1.

At the time, recently retired Fire Chief Kevin O’Brien said it was always the district’s intent to bring employees back.

“We saw a change in the landscape of COVID-19, and the district sees we are able to safely accommodate firefighters on a case-by-case basis to have them come back to duty,” O’Brien said. “It’s a different time than it was last winter or last fall.”

Six months after being suspended, Petersen returned to work in the same position.

“It’s very difficult working at an organization you’re in a lawsuit with,” he said. “We just want our facts heard. We want to be judged.”

The firefighters are asking the appellate court to reverse the summary judgment, recognize their religious objections as sincere and allow the case to go to trial.

If they lose, Kennedy said, they plan to take the case to the U.S. Supreme Court.

The Ninth Circuit’s ruling could establish how strictly courts apply the U.S. Supreme Court’s 2023 decision in Groff v. DeJoy, which raised the legal standard for denying religious accommodations. Under Groff, employers must prove a requested accommodation would impose a “substantial increased cost” — not merely hypothetical burdens.

“This case could become binding law for nine states,” Kennedy said. “It’s about ensuring employees aren’t forced to choose between their faith and their livelihood.”

The appellate court’s decision could take weeks or months. In the meantime, Petersen and his fellow plaintiffs wait — still hoping for their day in court.

“We want the truth to come out,” Petersen said. “And we don’t want this to ever happen again.”

Aspen Anderson: 425-339-3192; aspen.anderson@heraldnet.com; X: @aspenwanderson.